| US Bank N.A. v Weinman |
| 2014 NY Slip Op 09119 [123 AD3d 1108] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, as Trustee for CreditSuisse First Boston CSFB ARMT 2006-1, Respondent, v Caroline WaloskiWeinman, Appellant, et al., Defendant. |
Amed Marzano & Sediva PLLC, New York, N.Y. (Naved Amed and AlexanderSediva of counsel; Dana Cimera on the brief), for appellant.
Hogan Lovells US LLP, New York, N.Y. (David Dunn, Nicole E. Schiavo, andChava Brandriss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Caroline Waloski Weinmanappeals, as limited by her brief, from (1) stated portions of an order of the SupremeCourt, Suffolk County (Whelan, J.), dated March 29, 2013, (2) stated portions of anorder of the same court dated June 11, 2013, (3) so much of an order of the same courtdated September 13, 2013, as, after a framed-issue hearing on the issue of whether theplaintiff timely and properly served her with a notice of default in payment of the subjectmortgage obligation, as required by RPAPL 1304, granted those branches of theplaintiff's motion which were for summary judgment on the complaint and dismissing allcounterclaims and affirmative defenses and for the appointment of a referee to computethe amount owed to the plaintiff, and denied those branches of her cross motion whichwere pursuant to CPLR 3211 (a) and 3126 to dismiss the complaint insofar as assertedagainst her.
Ordered that the appeals from the orders dated March 29, 2013, and June 11, 2013,are dismissed, without costs or disbursements, as those orders were superseded by theorder dated September 13, 2013 (see US Bank N.A. v Cange, 96 AD3d 825 [2012]); and it isfurther,
Ordered that the order dated September 13, 2013, is modified, on the law, by deletingthe provision thereof granting those branches of the plaintiff's motion which were forsummary judgment on the complaint and dismissing the affirmative defense alleging thatit lacked standing, and for the appointment of a referee, and substituting therefor aprovision denying those branches of the motion; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
On or about July 14, 2005, the defendant Caroline Waloski Weinman obtained ahome loan in the principal sum of $600,000 from Wall Street Mortgage Brokers, Ltd.,doing business as Power Express (hereinafter Wall Street), secured by a mortgage on realproperty located in Greenport. On or about February 1, 2010, the plaintiff, US BankNational Association, as Trustee for Credit Suisse First Boston CSFB ARMT 2006-1,commenced this action to foreclose the mortgage.
[*2] " '[I]n an action to foreclose a mortgage, aplaintiff establishes its case as a matter of law through the production of the mortgage,the unpaid note, and evidence of default' " (Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d793, 793 [2012], quoting Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 1080[2010]). Where the plaintiff's standing to commence the action is placed in issue by thedefendant, the plaintiff must ultimately establish its standing to be entitled to relief (see Bank of N.Y. Mellon vGales, 116 AD3d 723 [2014]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]).In an action to foreclose a mortgage, the plaintiff has standing where, at the time theaction is commenced, it is the holder or assignee of both the subject mortgage and theunderlying note (see Bank of N.Y. Mellon v Gales, 116 AD3d at 724; Deutsche Bank Natl. Trust Co. vHaller, 100 AD3d 680, 682 [2012]; Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011])."[W]ritten assignment of the underlying note or the physical delivery of the note prior tothe commencement of the foreclosure action is sufficient to transfer the obligation"(Bank of N.Y. Mellon v Gales, 116 AD3d at 724 [internal quotation marksomitted]; Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d at 682; U.S.Bank, N.A. v Collymore, 68 AD3d at 754).
On a motion for summary judgment dismissing an affirmative defense, the movanthas the initial burden of demonstrating its prima facie entitlement to judgment as a matterof law (see JP Morgan ChaseBank v Munoz, 85 AD3d 1124, 1126 [2011]). Here, the plaintiff failed toestablish that, at the time the action was commenced, it was the holder or assignee ofboth the subject mortgage and the underlying note. The affidavit of the plaintiff'sservicing agent, which did not give any factual details of a physical delivery of the note,failed to establish that the plaintiff had physical possession of the note prior tocommencing this action (seeHomecomings Fin., LLC v Guldi, 108 AD3d 506, 508-509 [2013]; DeutscheBank Natl. Trust Co. v Haller, 100 AD3d at 682; HSBC Bank USA v Hernandez, 92 AD3d 843, 844[2012]). Moreover, excerpts from a Pooling and Servicing Agreement that was submittedwith the plaintiff's motion papers failed to demonstrate either the existence of a writtenassignment of the note, or the delivery of the note, by Wall Street to the plaintiff prior tothe commencement of the action. Since the plaintiff did not submit evidence sufficient todemonstrate that it had standing to commence this action, the Supreme Court erred ingranting that branch of its motion which was for summary judgment dismissingWeinman's affirmative defense alleging that it lacked standing. Consequently, the courtshould not have granted those branches of its motion which were for summary judgmenton the complaint and for the appointment of a referee (see Bank of N.Y. Mellon vGales, 116 AD3d at 725; HSBC Bank USA v Hernandez, 92 AD3d at844).
However, the Supreme Court properly denied that branch of Weinman's cross motionwhich was pursuant to CPLR 3211 (a) to dismiss the complaint insofar as assertedagainst her, which was based upon the plaintiff's lack of standing, as she failed toestablish that the plaintiff was not the holder or assignee of the subject mortgage and theunderlying note at the time this action was commenced (see Deutsche Bank Natl.Trust Co. v Haller, 100 AD3d at 683).
The defendant's remaining contentions are either without merit or not properly beforethis Court. Rivera, J.P., Roman, Duffy and Barros, JJ., concur.