| US Bank N.A. v Madero |
| 2015 NY Slip Op 01265 [125 AD3d 757] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, as Trustee,Respondent, v Miguel Madero et al., Appellants, et al.,Defendants. |
DeGuerre Law Firm, P.C., Staten Island, N.Y. (Anthony DeGuerre of counsel), forappellants.
Hogan Lovells US LLP, New York, N.Y. (David Dunn, Leah Rabinowitz, and LisaJ. Fried of counsel), for respondents.
In an action to foreclose a mortgage, the defendants Miguel Madero and MarthaMadero appeal, as limited by their brief, from so much of an order of the Supreme Court,Richmond County (Maltese, J.), dated January 28, 2013, as, upon a decision of the samecourt dated November 15, 2012, granted those branches of the plaintiff's motion whichwere for summary judgment on the complaint, to strike their answer, and for an order ofreference, and denied those branches of their cross motion which were pursuant to CPLR3211 (a) to dismiss the complaint, for summary judgment dismissing the complaint, orfor an immediate trial.
Ordered that the order is modified, on the law, by deleting the provisions thereofgranting those branches of the plaintiff's motion which were for summary judgment onthe complaint, to strike the answer of the defendants Miguel Madero and MarthaMadero, and for an order of reference, and substituting therefor a provision denyingthose branches of the motion; as so modified, the order is affirmed insofar as appealedfrom, with costs.
Generally, "[i]n residential mortgage foreclosure actions, as here, a plaintiffestablishes its prima facie entitlement to judgment as a matter of law by producing themortgage and the unpaid note, and evidence of the default" (Midfirst Bank v Agho, 121AD3d 343, 347 [2014]; seeW & H Equities LLC v Odums, 113 AD3d 840 [2014]; Washington Mut. Bank vSchenk, 112 AD3d 615, 616 [2013]; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2009]).However, "[w]here the plaintiff is not the original lender and standing is at issue, theplaintiff seeking summary judgment must also provide evidence that it received both themortgage and note by a proper assignment which can be established by the production ofa written assignment of the note or by physical delivery to the plaintiff of the mortgageand note" (Midfirst Bank v Agho, 121 AD3d at 347-348 [citations omitted]).
On its motion for summary judgment, the plaintiff had the burden of establishing, byproof in admissible form, its prima facie entitlement to judgment as a matter of law(see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557[1980]). In support of its motion for summary judgment, the plaintiff submitted, interalia, a copy of the note and the mortgage. The plaintiff also submitted an affidavit ofKyle N. Campbell, a Vice President of Loan Documentation for Wells Fargo Bank, N.A.,successor by merger to Wells Fargo Home Mortgage, Inc. (hereinafter Wells Fargo),doing business as America's Servicing Company (hereinafter ASC), the servicing agentfor [*2]the plaintiff. Based on his personal knowledgeand his review of the pleadings and records maintained by Wells Fargo and ASC,Campbell provided a summary of relevant events, including the execution of themortgage and the note, the transfer of the mortgage and the note to Wells Fargo, ascustodian for the trust for which the plaintiff served as trustee, and the default inpayments and amounts due.
However, the only bases for Campbell's assertions that the note and the mortgagewere physically transferred to Wells Fargo as custodian for the trust on March 1, 2007,and that Wells Fargo was in physical possession of the note and the mortgage at the timethis action was commenced, were documents in the possession of Wells Fargo and ASC.These records constituted hearsay (see generally People v Goldstein, 6 NY3d 119, 127[2005]). Since Campbell failed to lay a proper foundation for the admission of theserecords under the business records exception to the hearsay rule (see CPLR 4518[a]), those of Campbell's assertions that were based on these records were inadmissible.Since the motion was predicated on evidence that was not in admissible form, theplaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see JP Morgan Chase Bank, N.A. vRADS Group, Inc., 88 AD3d 766, 767 [2011]). Accordingly, the Supreme Courtshould have denied those branches of the plaintiff's motion which were for summaryjudgment on the complaint, to strike the answer of the defendants Miguel Madero andMartha Madero, and for an order of reference, without regard to the sufficiency of thepapers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
The appellants' remaining contentions are without merit. Rivera, J.P., Hall, Austinand Cohen, JJ., concur. [Prior Case History: 2012 NY Slip Op 32781(U).]