| Federal Natl. Mtge. Assn. v Cappelli |
| 2014 NY Slip Op 05836 [120 AD3d 621] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Federal National Mortgage Association,Respondent, v Giovanni Cappelli et al., Defendants, and Nives Cappelli,Appellant. |
Carol P. Richman, New Paltz, N.Y., for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Kenneth Sheehan andJessica Bookstaver of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Nives Cappelli appeals from anorder of the Supreme Court, Dutchess County (Sproat, J.), dated August 3, 2012, whichdenied her motion to dismiss the complaint insofar as asserted against her pursuant toCPLR 3211 (a) (3) for lack of standing, for the plaintiff's failure to comply with therequirements of RPAPL 1304, and for the plaintiff's failure to make a good-faith attemptat settlement pursuant to CPLR 3408 (f).
Ordered that the order is affirmed, with costs.
In this action to foreclose a mortgage, the defendant Nives Cappelli (hereinafter thedefendant) moved to dismiss the complaint insofar as asserted against her pursuant toCPLR 3211 (a) (3) for lack of standing, for the plaintiff's failure to comply with therequirements of RPAPL 1304, and for the plaintiff's failure to make a good-faith attemptat settlement pursuant to CPLR 3408 (f).
The Supreme Court properly denied that branch of the defendant's motion which wasto dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (3) forlack of standing. Where, as here, standing is put into issue by a defendant, the plaintiffmust prove its standing in order to be entitled to relief (see Bank of N.Y. Mellon vGales, 116 AD3d 723, 723 [2014]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]).In a mortgage foreclosure action, a plaintiff has standing where it is the holder orassignee of both the subject mortgage and of the underlying note at the time the action iscommenced (see Bank of N.Y. Mellon v Gales, 116 AD3d at 723; HSBC Bank USA vHernandez, 92 AD3d 843, 843 [2012]; U.S. Bank, N.A. v Collymore, 68AD3d at 753). Either a written assignment of the underlying note or the physical deliveryof the note prior to the commencement of the foreclosure action is sufficient to transferthe obligation (see HSBC Bank USA v Hernandez, 92 AD3d at 844; Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 108 [2011]; U.S. Bank, N.A. v Collymore, 68AD3d at 754). Here, the issue of standing cannot be determined as a matter of law on thisrecord, because there is a question of fact as to whether the plaintiff was the lawfulholder of the note when it commenced the action (see Deutsche Bank Natl. Trust Co.v Haller, 100 [*2]AD3d 680, 683 [2012]; Deutsche Bank Natl. Trust Co. vRivas, 95 AD3d 1061, 1062 [2012]; HSBC Bank USA v Hernandez, 92AD3d at 844).
Contrary to the defendant's contention, the plaintiff complied with the requirementsof RPAPL 1304 (cf. Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 103).Moreover, the defendant's argument that the plaintiff failed to provide proof of service ofa default notice is improperly raised for the first time on appeal (cf. Pritchard v Curtis, 101AD3d 1502, 1504-1505 [2012]). Accordingly, the Supreme Court properly deniedthat branch of the defendant's motion which was to dismiss the complaint insofar asasserted against her on the ground that the plaintiff failed to comply with RPAPL 1304.The Supreme Court also properly denied that branch of the defendant's motion whichwas to dismiss the complaint insofar as asserted against her for the plaintiff's failure tomake a "good-faith" attempt at settlement (see CPLR 3408 [f]). The record beforeus is inadequate to determine whether, under the totality of the circumstances, theplaintiff's "conduct did not constitute a meaningful effort at reaching a resolution"(US Bank N.A. v Sarmiento, 121 AD3d 187 [2d Dept 2014]). Since such a factual determination cannot be made, the plaintiff'salleged bad faith does not provide a basis for dismissal of the action.
Based on the foregoing, the parties' remaining contentions need not be reached.Dillon, J.P., Hall, Miller and Hinds-Radix, JJ., concur.