| Flagstar Bank, FSB v Anderson |
| 2015 NY Slip Op 04606 [129 AD3d 665] |
| June 3, 2015 |
| Appellate Division, Second Department |
[*1]
| Flagstar Bank, FSB, Respondent, v Nollis C.Anderson et al., Appellants, et al., Defendants. |
Alice A. Nicholson, Brooklyn, N.Y., for appellants.
McGovern & Amodio, White Plains, N.Y. (Michael P. Amodio of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Nollis C. Anderson andChristina Officer appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Elliot, J.), entered July 15, 2013, as, upon a decision ofthe same court dated February 1, 2013, granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint, to strike their answer, and for anorder of reference.
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 Nollis C. Anderson and ChristinaOfficer, and for an order of reference are denied.
In a mortgage foreclosure action, where, as here, the plaintiff's standing to commencethe action is placed in issue by a 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 plaintiff failed to establish, prima facie, that it had standing to commencethis action. The relevant affidavits the plaintiff submitted contained conclusorystatements regarding the plaintiff's possession of the note, without any factual details of aphysical delivery and, thus, failed to establish that the plaintiff had physical possession ofthe note prior to commencing the action (see US Bank N.A. v Faruque, 120 AD3d 575, 577 [2014];Deutsche Bank Natl. Trust Co. vHaller, 100 AD3d 680, 682 [2012]; HSBC Bank USA v Hernandez, 92 AD3d 843, 844 [2012];cf. Kondaur Capital Corp. vMcCary, 115 AD3d 649, 650 [2014]; Aurora Loan Servs., LLC v Taylor, 114 AD3d 627,628-629 [2014]; Deutsche BankNatl. Trust Co. v Whalen, 107 AD3d 931, 932 [2013]). The copy of the note theplaintiff [*2]submitted in support of its motion includedan indorsement to the plaintiff but, because the indorsement was undated, it is not clearwhether the indorsement was effectuated prior to the commencement of this action (see Wells Fargo Bank, NA vBurke, 125 AD3d 765, 767 [2015]; Deutsche Bank Natl. Trust Co. vHaller, 100 AD3d at 682-683). Although the written assignment of the mortgage thatthe plaintiff submitted was dated and recorded prior to the date this action wascommenced, that assignment only transferred the mortgage. The plaintiff failed to showthat the note also was assigned at that time (see Wells Fargo Bank, NA v Burke,125 AD3d at 765; US Bank N.A. v Faruque, 120 AD3d at 577).
Moreover, the plaintiff failed to tender sufficient evidence demonstrating the absenceof triable issues of fact as to its strict compliance with RPAPL 1304 (see Wells FargoBank, NA v Burke, 125 AD3d at 767).
Accordingly, those branches of the plaintiff's motion which were for summaryjudgment on the complaint, to strike the answer of the defendants Nollis C. Andersonand Christina Officer (hereinafter together the appellants), and for an order of referenceshould have been denied, without regard to the sufficiency of the opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The appellants' remaining contention is not properly before this Court. Rivera, J.P.,Hall, Austin and LaSalle, JJ., concur.