| Bank of N.Y. Mellon v Gales |
| 2014 NY Slip Op 02402 [116 AD3d 723] |
| April 9, 2014 |
| Appellate Division, Second Department |
| Bank of New York Mellon, Successor in Interest toJPMorgan Chase Bank, N.A., as Trustee for the Registered Holder of First FranklinMortgage Loan Trust 2005-FF1 Mortgage Pass-Through Certificates, Series 2005-FF1,Respondent, v Traci Gales et al., Appellants, et al,Defendants. |
—[*1] Houser & Allison, APC, New York, N.Y. (Kathleen M. Massimo of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Traci Gales and Germaine Galesappeal from an order of the Supreme Court, Rockland County (Kelly, J.), entered May 4,2012, which granted the plaintiff's motion for summary judgment on the complaintinsofar as asserted against them and denied their cross motion to dismiss the complaintfor failure to state a cause of action and lack of standing.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting the plaintiff's motion for summary judgment on the complaint insofar as assertedagainst the defendants Traci Gales and Germaine Gales, and substituting therefor aprovision denying the plaintiff's motion; as so modified, the order is affirmed, withoutcosts or disbursements.
Contrary to the Supreme Court's determination, the plaintiff failed to demonstrate itsprima facie entitlement to judgment as a matter of law, as it did not submit sufficientevidence to demonstrate that it had standing to commence this action. Where, as here,standing is put into issue by the defendant, the plaintiff must prove its standing in orderto be entitled to relief (see U.S.Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 242 [2007]). In a mortgage foreclosure action, "[a]plaintiff has standing where it is the holder or assignee of both the subject mortgage andof the underlying note at the time the action is commenced" (HSBC Bank USA vHernandez, 92 AD3d 843, 843 [2012]; see U.S. Bank, N.A. vCollymore, 68 AD3d at 753; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709[2009]). " 'Either a written assignment of the underlying note or the physical delivery ofthe note prior to the commencement of the foreclosure action is sufficient to transfer theobligation' " (HSBC Bank USA v Hernandez, 92 AD3d at 844, quoting U.S.Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95,108 [2011]). "Where a mortgage is represented by a bond or other instrument, anassignment of the mortgage without assignment of the underlying note or bond is anullity" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Merritt vBartholick, 36 NY 44, 45 [1867]; Kluge v Fugazy, 145 AD2d 537, 538[1988]).
Here, the evidence submitted by the plaintiff in support of its motion did not [*2]demonstrate that the note was physically delivered to itprior to the commencement of the action, and the plaintiff similarly failed to submit awritten assignment of the note. Accordingly, the plaintiff failed to establish itsentitlement to judgment as a matter of law, and the Supreme Court should have denied itsmotion for summary judgment.
Contrary to the appellants' contentions, the Supreme Court properly denied theircross motion to dismiss the complaint, as they did not have standing to assertnoncompliance with the subject lender's pooling service agreement (see Rajamin vDeutsche Bank Natl. Trust Co., — F Supp 2d —, 2013 WL 1285160,2013 US Dist LEXIS 45031 [SD NY 2013]).
The appellants' remaining contention is without merit. Dillon, J.P., Chambers, Austinand Duffy, JJ., concur.