| HSBC Bank USA, N.A. v Sage |
| 2013 NY Slip Op 08327 [112 AD3d 1126] |
| December 12, 2013 |
| Appellate Division, Third Department |
| HSBC Bank USA, National Association, as Trustee for AceSecurities Corporation Home Equity Loan Trust, Series 2006-OP2 Asset BackedPass-Through Certificates, Respondent, v Gregory Sage, Appellant, et al.,Defendants. |
—[*1] Hinshaw & Culbertson, New York City (Schuyler Kraus of counsel), forrespondent.
Rose, J.P. Appeal from an order of the Supreme Court (Melkonian, J.), enteredDecember 20, 2012 in Ulster County, which, among other things, granted plaintiff'smotion for summary judgment striking defendant Gregory Sage's answer.
Plaintiff commenced this foreclosure action alleging that defendant Gregory Sage(hereinafter defendant) defaulted on a note secured by a mortgage on his real property.After joinder of issue and an extended period of time during which settlementconferences took place, plaintiff moved for summary judgment striking the answer andappointment of a referee. Defendant cross-moved for, among other things, leave toamend his answer to allege that plaintiff lacked standing to bring the action. SupremeCourt granted plaintiff's motion and denied the cross motion. We now affirm.
In a foreclosure action, a mortgagee producing evidence of the mortgage, unpaidnote and the mortgagor's default will be entitled to summary judgment (see PhelpsCorp. v Jones, 108 [*2]AD3d 814, 815 [2013]; Charter One Bank, FSB vLeone, 45 AD3d 958, 958 [2007]; HSBC Bank USA v Merrill, 37 AD3d 899, 900 [2007],lv dismissed 8 NY3d 967 [2007]). Here, the mortgage had been pooled,securitized and transferred as part of a pooling and service agreement. Plaintiff submittedthe mortgage, the note and allonge endorsing the note in blank, a redacted mortgage loanschedule identifying the loan as part of the pool of loans held in trust, excerpts from thepooling and service agreement, and the acceleration letter reflecting defendant's default.Plaintiff established that the custodian of the trust had physical possession of the noteand mortgage prior to the commencement of the action and that, as trustee, plaintiff wasresponsible for carrying out the terms of the trust. Contrary to defendant's claim, theaffidavit from an assistant vice-president of the mortgage servicing company wasadequately based on a review of the books and records of the company maintained in theordinary course of business, and the lack of personal knowledge as to the creation of thedocuments is not fatal (see CPLR 3212 [b]; 4518 [a]; Alvarez v ProspectHosp., 68 NY2d 320, 325 [1986]). Accordingly, plaintiff met its initial burden on themotion for summary judgment and the burden then shifted to defendant to come forwardwith competent and admissible evidence demonstrating the existence of a defense thatproperly could raise an issue of fact as to his default (see HSBC Bank USA vMerrill, 37 AD3d at 900; LaSalle Bank N.A. v Kosarovich, 31 AD3d 904,905 [2006]).
In opposition to the motion, and in support of his cross motion to amend his answer,defendant alleged that plaintiff lacked standing to bring the action. Defendant waived theaffirmative defense of standing, however, by virtue of his failure to raise it in apre-answer motion to dismiss or in the answer (see HSBC Bank USA, N.A. v Ashley, 104 AD3d 975,975-976 [2013], lv dismissed 21 NY3d 956 [2013]; Kruger v State Farm Mut. Auto.Ins. Co., 79 AD3d 1519, 1520 [2010]). Moreover, plaintiff's physical possessionof the note and mortgage, through its custodian, for over two years prior tocommencement of the action is sufficient to confer standing (see Chase Home Fin., LLC vMiciotta, 101 AD3d 1307, 1307 [2012]; Wells Fargo Bank, N.A. v Wine, 90 AD3d 1216, 1217[2011]; LaSalle Bank Natl.Assn. v Ahearn, 59 AD3d 911, 912 [2009]), regardless of whether a laterwritten assignment of the mortgage may be a falsified document (see Deutsche Bank Natl. Trust Co.v Whalen, 107 AD3d 931, 932 [2013]).
Defendant's remaining allegations of fraud are general in nature and "do not providethe detailed and specific factual allegations of fraudulent conduct necessary to sustainsuch claims" (Wells Fargo Bank, N.A. v Wine, 90 AD3d at 1218, citing CPLR3013, 3016 [b]). His further allegations regarding the creation of the allonge and whetherhe was in default are insufficient to raise an issue of fact inasmuch as they areunsupported by any evidence and, instead, contradicted by the record (see ChaseHome Fin., LLC v Miciotta, 101 AD3d at 1308; Charter One Bank, FSB vLeone, 45 AD3d at 959). In light of defendant's failure to raise an issue of fact, hehas not shown that there is merit to his proposed amended answer and, therefore, wediscern no abuse of discretion in the denial of his cross motion (see Town of Plattekill v AceMotocross, Inc., 87 AD3d 788, 789 [2011]; Marotta v Hoy, 55 AD3d 1194, 1196 [2008]). We haveconsidered defendant's remaining contentions and find them to be similarly unavailing.
Stein, Spain and Garry, JJ., concur. Ordered that the order is affirmed, without costs.