| U.S. Bank N.A. v Guy |
| 2015 NY Slip Op 01443 [125 AD3d 845] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee on Behalfof the Holders of the Adjustable Rate Mortgage Trust 2007-1, Adjustable RateMortgage-Backed Pass Through Certificates, Series 2007-1, Appellant, v PaulaGuy, Respondent, et al., Defendants. |
Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A.Cheverko of counsel), for appellant.
Biolsi Law Group, P.C., New York, N.Y. (Steven Alexander Biolsi and Juan PaoloF. Dizon of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from(1) so much an order of the Supreme Court, Kings County (Schmidt, J.), dated December7, 2012, as conditionally granted that branch of the motion of the defendant Paula Guywhich was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as assertedagainst her for lack of standing to the extent of directing the dismissal of the complaint inthe event that the plaintiff failed to submit evidence to establish standing by a certaindate, and (2) so much of an order of the same court dated August 22, 2013, as grantedthat branch of the motion of the defendant Paula Guy which was pursuant to CPLR 3211(a) (3) to dismiss the complaint insofar as asserted against her for lack of standing basedupon the plaintiff's failure to comply with the order dated December 7, 2012.
Ordered that the orders are reversed insofar as appealed from, on the law, with onebill of costs, and that branch of the motion of the defendant Paula Guy which waspursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against her forlack of standing is denied.
The plaintiff commenced this mortgage foreclosure action in 2012, alleging that thedefendant Paula Guy failed to comply with the conditions of the mortgage by not makingthe payments due thereunder. Guy moved, inter alia, pursuant to CPLR 3211 (a) (3) todismiss the complaint insofar as asserted against her for lack of standing. In opposition toGuy's motion, the plaintiff submitted, among other things, the underlying adjustable ratenote with an affixed undated allonge endorsed in blank, indicating that the plaintiff wasthe transferee of the note. In an order dated December 7, 2012, the Supreme Court, interalia, conditionally granted that branch of Guy's motion which was pursuant to CPLR3211 (a) (3) to dismiss the complaint insofar as asserted against her for lack of standingto the extent of directing the dismissal of the complaint in the event that the plaintifffailed to submit evidence to establish standing by a certain date. In an order dated August22, 2013, the Supreme Court granted that branch of Guy's motion which was to dismissthe complaint insofar as asserted against her for lack of standing based upon theplaintiff's failure to comply with the order dated December 7, 2012. The plaintiffappeals.
"A plaintiff establishes its standing in a mortgage foreclosure action bydemonstrating that it is both the holder or assignee of the subject mortgage and theholder or assignee of the underlying note at the time the action is commenced"(Kondaur Capital Corp. v McCary, 115 AD3d [*2]649, 650 [2014]; see HSBC Bank USA v Hernandez, 92 AD3d 843 [2012];Bank of N.Y. v Silverberg,86 AD3d 274, 279 [2011]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 209[2009]; U.S. Bank, N.A. vCollymore, 68 AD3d 752, 753 [2009]). The plaintiff may demonstrate that it isthe holder or assignee of the underlying note by showing either a written assignment ofthe underlying note or the physical delivery of the note (see Kondaur Capital Corp. vMcCary, 115 AD3d at 650; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 108[2011]; U.S. Bank, N.A. v Collymore, 68 AD3d at 754). On a defendant's motionpursuant to CPLR 3211 (a) (3) to dismiss the complaint based upon the plaintiff's allegedlack of standing, the burden is on the moving defendant to establish, prima facie, theplaintiff's lack of standing as a matter of law (see HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d1061, 1062 [2011]). To defeat the motion, a plaintiff must submit evidence whichraises a question of fact as to its standing (see US Bank N.A. v Faruque, 120 AD3d 575, 578 [2014];Deutsche Bank Natl. Trust Co. vHaller, 100 AD3d 680, 683 [2012]).
Here, by producing the underlying adjustable rate note with an affixed undatedallonge endorsed in blank, indicating that the plaintiff was the transferee of the note, theplaintiff made a showing sufficient to deny that branch of Guy's motion which waspursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against herbased on the plaintiff's alleged lack of standing (see CPLR 3211 [a] [3]; Deutsche Bank Natl. Trust Co. vRivas, 95 AD3d 1061 [2012]; Deutsche Bank Trust Co. Ams. v Codio, 94 AD3d 1040,1041 [2012]; cf. HomecomingsFin., LLC v Guldi, 108 AD3d 506, 508 [2013]; U.S. Bank, N.A. v Sharif, 89AD3d 723, 725 [2011]).
In light of our determination, we need not address the plaintiff's remainingcontentions.
Accordingly, the Supreme Court should have denied that branch of Guy's motionwhich was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as assertedagainst her for lack of standing. Mastro, J.P., Leventhal, Miller and Maltese, JJ.,concur.