| Deutsche Bank Natl. Trust Co. v Whalen |
| 2013 NY Slip Op 04770 [107 AD3d 931] |
| June 26, 2013 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Respondent, v Thomas J. Whalen, Appellant, et al.,Defendants. |
—[*1] Hinshaw & Culbertson, LLP, New York, N.Y. (Jason J. Oliveri and Schuyler B.Kraus of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Thomas J. Whalen appeals, aslimited by his brief, from so much of an order of the Supreme Court, Dutchess County(Brands, J.), dated April 16, 2012, as granted those branches of the plaintiff's crossmotion which were for summary judgment on the complaint insofar as asserted againsthim and dismissing his affirmative defenses and counterclaims.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2005, the defendant Thomas J. Whalen executed a note and mortgage inconnection with the refinancing of his home. The original mortgagee transferred the noteand mortgage to the plaintiff, and subsequently executed an assignment of thosedocuments to the plaintiff prior to the commencement of this action. Whalen defaulted in2008, and the plaintiff commenced this action against Whalen and others in 2009.Whalen answered the complaint asserting affirmative defenses and counterclaimsalleging, inter alia, that the plaintiff did not have standing to maintain this action and hadunclean hands.
Where, as here, standing is put into issue by the defendant, "the plaintiff must proveits standing in order to be entitled to relief " (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009];see Wells Fargo Bank Minn.,N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]). "In a mortgage foreclosureaction, a plaintiff has standing where it is both the holder or assignee of the subjectmortgage and the holder or assignee of the underlying note at the time the action iscommenced" (Bank of N.Y. vSilverberg, 86 AD3d 274, 279 [2011]; see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d909, 911 [2013]; U.S. Bank, N.A. v Collymore, 68 AD3d at 753). "Either awritten assignment of the underlying note or the physical delivery of the note prior to thecommencement of the foreclosure action is sufficient to transfer the obligation"(Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d at 912 [internal quotationmarks and citations omitted]; see HSBC Bank USA v Hernandez, 92 AD3d 843, 844[2012]; Bank of N.Y. v Silverberg, 86 AD3d at 281; U.S. Bank, N.A. vCollymore, 68 AD3d at 754).[*2]
Here, in support of its cross motion for summaryjudgment on the complaint insofar as asserted against Whalen and dismissing hisaffirmative defenses and counterclaims, the plaintiff established its prima facieentitlement to judgment as a matter of law by producing the mortgage, the unpaid note,and evidence of default (seeGRP Loan, LLC v Taylor, 95 AD3d 1172, 1173 [2012]; Deutsche Bank Natl. Trust Co. vPosner, 89 AD3d 674, 674-675 [2011]). The plaintiff also established itsstanding as the holder of the note and mortgage by physical delivery prior tocommencement of the action with evidence that its custodian received the original notein October 2005 and received the original mortgage in February 2006 and safeguardedthose original documents in a secure location (see US Bank N.A. v Cange, 96 AD3d 825, 827 [2012];cf. HSBC Bank USA v Hernandez, 92 AD3d at 844). Since the plaintiffestablished its standing by physical delivery, we need not address the validity of thesubsequently executed document assigning the mortgage and note (cf. Deutsche BankNatl. Trust Co. v Spanos, 102 AD3d at 912). The plaintiff also established, primafacie, that it did not have unclean hands with respect to its procurement of the subjectnote and mortgage. In opposition, Whalen failed to raise a triable issue of fact withrespect to the plaintiff's standing or alleged unclean hands in obtaining the note andmortgage.
Accordingly, the Supreme Court properly granted the plaintiff's cross motion forsummary judgment on the complaint insofar as asserted against Whalen and dismissinghis affirmative defenses and counterclaims. Skelos, J.P., Angiolillo, Leventhal andChambers, JJ., concur.