| Wells Fargo Bank, NA v Burke |
| 2015 NY Slip Op 01267 [125 AD3d 765] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, NA, Respondent, v BrianBurke et al., Appellants, et al., Defendants. |
Richard J. Sullivan, Port Jefferson, N.Y., for appellants.
Hogan Lovells US, LLP, New York, N.Y. (Chava Brandriss of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Brian Burke and Lisa Burkeappeal, as limited by their brief, from so much of an order of the Supreme Court, SuffolkCounty (Whelan, J.), entered September 16, 2013, as granted those branches of theplaintiff's motion which were for summary judgment on the complaint, to strike theiranswer, and to appoint a referee to compute the sums due and owing under the subjectnote and mortgage.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and those branches of the plaintiff's motion which were for summary judgment on thecomplaint, to strike the answer of the defendants Brian Burke and Lisa Burke, and toappoint a referee to compute the sums due and owing under the subject note andmortgage are denied.
In a mortgage foreclosure action, where the plaintiff's standing to commence theaction is placed in issue by the defendant, "the plaintiff must prove its standing in orderto be entitled to relief" (U.S.Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]). "[A] plaintiff has standingwhere it is both the holder or assignee of the subject mortgage and the holder or assigneeof the underlying note at the time the action is commenced" (Bank of N.Y. v Silverberg, 86AD3d 274, 279 [2011]). "Either a written assignment of the underlying note or thephysical delivery of the note prior to the commencement of the foreclosure action issufficient to transfer the obligation, and the mortgage passes with the debt as aninseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; seeBank of N.Y. v Silverberg, 86 AD3d at 281).
Here, the evidence submitted by the plaintiff in support of its motion, inter alia, forsummary judgment on the complaint, to strike the answer of the defendants Brian Burkeand Lisa Burke (hereinafter together the Burke defendants), and to appoint a referee tocompute the sums due and owing under the subject note and mortgage, did not establishthat the subject note was physically delivered to it prior to the commencement of theaction (see US Bank N.A. vFaruque, 120 AD3d 575, 577 [2014]; Bank of N.Y. Mellon v Gales, 116 AD3d 723 [2014]). Theaffidavits of the plaintiff's Vice President of Loan Documentation did not give anyfactual details of a physical delivery and, thus, failed to establish that the plaintiff hadphysical possession of the note at the time the action was commenced (see US BankN.A. v Faruque, 120 AD3d at 577; Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d 680,682 [2012]; cf. Aurora LoanServs., LLC v Taylor, 114 AD3d 627, 628-629 [2014]). Further, although theplaintiff's Vice President of Loan Documentation stated in her affidavits that [*2]the plaintiff was the holder of the note, she never stated thatthe plaintiff was the holder of the note at the time the action was commenced (seeU.S. Bank, N.A. v Collymore, 68 AD3d at 754).
While the copy of the note submitted by the plaintiff in support of its motion includesan indorsement to the plaintiff by the original lender and a second indorsement to theplaintiff, both indorsements are undated and, thus, it is not clear whether theindorsements were effectuated prior to the commencement of this action (seeDeutsche Bank Natl. Trust Co. v Haller, 100 AD3d at 682-683; U.S. Bank, N.A.v Collymore, 68 AD3d at 754). Regarding the purported assignment of the note andmortgage, the assignment of the mortgage from the Mortgage Electronic RegistrationSystems, Inc., to the plaintiff dated March 4, 2011, transferred only the mortgage and,thus, the plaintiff failed to demonstrate that the note had also been assigned at that time(see US Bank N.A. v Faruque, 120 AD3d at 577; Bank of N.Y. vSilverberg, 86 AD3d at 283; cf. Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d674 [2007]). Under these circumstances, the plaintiff failed to establish, prima facie,that it had standing to commence this action.
In any event, as the Burke defendants correctly contend, the plaintiff failed to submitan affidavit of service evincing that it properly served the Burke defendants pursuant toRPAPL 1304 (see DeutscheBank Natl. Trust Co. v Spanos, 102 AD3d 909, 911 [2013]; Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 106 [2011]). Consequently, under the circumstances,the plaintiff failed to tender sufficient evidence demonstrating the absence of materialissues as to its strict compliance with RPAPL 1304 (see Aurora Loan Servs., LLC vWeisblum, 85 AD3d at 106).
Accordingly, those branches of the plaintiff's motion which were for summaryjudgment on the complaint, to strike the answer of the Burke defendants, and to appoint areferee to compute the sums due and owing under the subject note and mortgage, shouldhave been denied, without regard to the sufficiency of the opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Leventhal, J.P.,Hall, Austin and Sgroi, JJ., concur.