| Wachovia Mtge. Corp. v Lopa |
| 2015 NY Slip Op 04843 [129 AD3d 830] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| Wachovia Mortgage Corporation, Respondent, v FrankLopa, Jr., Appellant, et al., Defendants. |
Stephen C. Silverberg, PLLC, Uniondale, N.Y., for appellant.
Stevens & Lee, New York, N.Y. (Constantine D. Pourakis of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Frank Lopa, Jr., appeals from ajudgment of foreclosure and sale of the Supreme Court, Richmond County (McMahon,J.), dated May 14, 2012, which, upon an order of the same court dated January 11, 2012,granting the plaintiff's motion for summary judgment on the complaint, to strike hisanswer, and for an order of reference, granted the plaintiff's motion to confirm thereferee's report and directed the sale of the subject property.
Ordered that the judgment of foreclosure and sale is affirmed, with costs.
In an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlementto judgment as a matter of law through the production of the mortgage, the unpaid note,and evidence of default (seeMLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Dev., LLC, 116 AD3d745 [2014]; Argent Mtge.Co., LLC v Mentesana, 79 AD3d 1079, 1080 [2010]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 244 [2007]). Additionally, where, as here, the issueof standing is raised by the defendant, a plaintiff must prove its standing to be entitled torelief (see Bank of N.Y. vSilverberg, 86 AD3d 274, 279 [2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009])."[A] plaintiff has standing where it is both the holder or assignee of the subject mortgageand the holder or assignee of the underlying note at the time the action is commenced"(Bank of N.Y. v Silverberg, 86 AD3d at 279; see Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d931, 932 [2013]; U.S. Bank, N.A. v Collymore, 68 AD3d at 753).
Here, the plaintiff established its prima facie entitlement to judgment as a matter oflaw by producing the mortgage, the unpaid note, and the affidavit of its Senior LoanAdjustor, who attested to the default of the defendant Frank Lopa, Jr. (hereinafter thedefendant). The plaintiff also established its standing as the holder of the note andmortgage since those documents reflect that the plaintiff was the originator of the loanand the plaintiff's Senior Loan Adjustor averred that the plaintiff was still the holder ofthe note and mortgage when it commenced the action (see Emigrant Mtge. Co., Inc. vPersad, 117 AD3d 676, 677 [2014]). In opposition, the defendant failed to raisea triable issue of fact.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary[*2]judgment on the complaint, to strike the defendant'sanswer, and for an order of reference.
Moreover, the Supreme Court properly confirmed the referee's report. Contrary to thedefendant's contention, under the circumstances of this case, the referee was not requiredto conduct a hearing before issuing his report (see Capital One, N.A. v Knollwood Props. II, LLC, 98 AD3d707 [2012]; Deutsche BankNatl. Trust Co. v Jackson, 68 AD3d 805 [2009]; LBV Props. v GreenportDev. Co., 188 AD2d 588 [1992]).
The defendant's remaining contentions are without merit. Balkin, J.P., Chambers,Miller and Hinds-Radix, JJ., concur.