| Wells Fargo Bank, N.A. v Parker |
| 2015 NY Slip Op 01445 [125 AD3d 848] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., as Trustee for Option OneMortgage Loan Trust 2007-CP1 Asset-Backed Certificates, Series 2007-CP1,Appellant, v Edward A. Parker, Respondent, et al.,Defendants. |
Hinshaw & Culbertson, LLP, New York, N.Y. (Schuyler B. Kraus andKhardeen I. Shillingford of counsel), for appellant.
Jeanette Zelhof, New York, N.Y. (Renee Cadmus of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Partnow, J.), dated September 4, 2012, which grantedthat branch of the motion of the defendant Edward A. Parker which was to dismiss thecomplaint insofar as asserted against him, based on the plaintiff's lack of standing, anddenied, as academic, its cross motion for summary judgment dismissing the defenses andcounterclaims asserted by the defendant Edward A. Parker.
Ordered that the order is reversed, on the law, with costs, that branch of the motionof the defendant Edward A. Parker which was to dismiss the complaint insofar asasserted against him, based on the plaintiff's lack of standing, is denied, that branch ofthe plaintiff's cross motion which was for summary judgment dismissing the defenses ofthe defendant Edward A. Parker is granted, and the matter is remitted to the SupremeCourt, Kings County, for a determination on the merits of that branch of the plaintiff'scross motion which was for summary judgment dismissing the counterclaims of thedefendant Edward A. Parker.
The plaintiff Wells Fargo Bank, N.A. (hereinafter Wells Fargo), as trustee for theOption One Mortgage Loan Trust 2007-CPI Asset-Backed Certificates, Series 2007-CPI(hereinafter the Option One Trust), commenced this foreclosure action on February 29,2008, against Edward A. Parker and several nominal defendants. The complaint allegedthat Parker was the owner of record of certain mortgaged real property, and the originalobligor under an adjustable rate note dated January 15, 2007, in the amount of $584,000(hereinafter the note), issued by Alliance Mortgage Corporation (hereinafter Alliance),and secured by a mortgage dated January 15, 2007, on the four-unit apartment buildingin Brooklyn where Parker resided (hereinafter the mortgage). After entering judgment inWells Fargo's favor based on Parker's default in answering the complaint, the SupremeCourt granted Parker's motion to vacate the judgment in an order dated April 6, 2011,which is not at issue on this appeal.
Parker thereafter answered the complaint, asserting two defenses, alleging that WellsFargo lacked standing and capacity to sue, and two counterclaims, alleging a violation ofGeneral Business Law § 349 by Wells Fargo's predecessor in interest, and aviolation of 22 NYCRR 130-1.1 (c), based on Wells Fargo's commencement of theinstant action despite its alleged lack of [*2]standing.Parker then moved to dismiss the complaint, based, among other things, on Wells Fargo'slack of standing (see CPLR 3211 [a] [3]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d239, 241-243 [2007]). In opposition, Wells Fargo cross-moved for summaryjudgment dismissing Parker's defenses and counterclaims. The Supreme Court grantedthat branch of Parker's motion which was to dismiss the complaint based on WellsFargo's lack of standing, and denied, as academic, Wells Fargo's cross motion forsummary judgment dismissing Parker's defenses and counterclaims. Wells Fargoappeals.
Where a defendant raises the issue of standing, the plaintiff has the burden ofproving its standing and entitlement to relief (see MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Dev.,LLC, 116 AD3d 745 [2014]; Aurora Loan Servs., LLC v Taylor, 114 AD3d 627 [2014];Bank of N.Y. v Silverberg,86 AD3d 274, 279 [2011]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207[2009]). In such circumstances, a plaintiff establishes its standing and entitlement torelief in an action to foreclose a mortgage by producing the mortgage, the unpaid note,evidence of default, and evidence demonstrating that the plaintiff is the holder orassignee of the mortgage and the underlying note at the time it commences theforeclosure action (see MLCFC2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Dev., LLC, 116 AD3d 745[2014]; Homecomings Fin.,LLC v Guldi, 108 AD3d 506 [2013]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 1080[2010]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 244). "Eithera written 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, andthe mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore,68 AD3d 752, 754 [2009]; see Kondaur Capital Corp. v McCary, 115 AD3d 649[2014]; Aurora Loan Servs.,LLC v Taylor, 114 AD3d 627 [2014]).
Here, in support of its motion for summary judgment dismissing Parker's defensesalleging lack of standing and capacity to sue, Wells Fargo established, prima facie, that ithad standing as the holder of the note and mortgage by submitting the affidavit of CindiEllis, assistant vice-president of American Home Mortgage Servicing, Inc., the loanservicing agent and attorney-in-fact for Wells Fargo in its capacity as trustee of theOption One Trust. It also established, prima facie, that it was a corporate entityempowered to sue and be sued and, thus, had legal capacity to sue. In her affidavit, Ellisexplained that Wells Fargo had physical possession of the note prior to commencementof this action and that Wells Fargo was a corporate entity that could sue in its own name(see Wells Fargo Bank, N.A. vArias, 121 AD3d 973 [2014]; Kondaur Capital Corp. v McCary, 115 AD3d 649 [2014];Aurora Loan Servs., LLC vTaylor, 114 AD3d 627 [2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931[2013]). In opposition, Parker failed to raise a triable issue of fact. Accordingly, theSupreme Court should have denied that branch of Parker's motion which was to dismissthe complaint, made on the ground that Wells Fargo lacked standing, and granted thosebranches of Wells Fargo's cross motion which were for summary judgment dismissingParker's defenses, which alleged that Wells Fargo lacked standing and capacity tosue.
Since the Supreme Court directed the dismissal of the complaint solely on the groundthat Wells Fargo lacked standing, it did not reach Wells Fargo's cross motion forsummary judgment dismissing Parker's defenses and counterclaims. Inasmuch as WellsFargo's cross motion is no longer academic in light of our determination, and we havedisposed of those branches of the cross motion which were for summary judgmentdismissing Parker's defenses, we remit the matter to the Supreme Court, Kings County,for a determination on the merits of that branch of Wells Fargo's cross motion which wasfor summary judgment dismissing Parker's counterclaims, which remains pending andundecided. Dillon, J.P., Chambers, Cohen and Maltese, JJ., concur.