| Loancare v Firshing |
| 2015 NY Slip Op 06118 [130 AD3d 787] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Loancare, a Division of FNF Servicing Inc.,Respondent, v Lorraine Firshing et al., Appellants, et al.,Defendant. |
Lisa M. Firshing, sued herein as Lisa M. Firshing-Carrera, Lynbrook, N.Y., appellantpro se and for appellant Lorraine Firshing.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Lorraine Firshing and Lisa M.Firshing-Carrera appeal from (1) an order of the Supreme Court, Nassau County (Adams,J.), entered June 4, 2014, and (2) an order of the same court entered June 20, 2014, whichgranted the plaintiff's motion for summary judgment on the complaint insofar as assertedagainst them and for an order of reference.
Ordered that the appeal from the order entered June 4, 2014, is dismissed, as thatorder was superseded by the order entered June 20, 2014; and it is further,
Ordered that the order entered June 20, 2014, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
On March 30, 2009, the defendants Lorraine Firshing and Lisa M. Firshing-Carrera(hereinafter together the defendants) executed a note pursuant to which they promised torepay the sum of $424,297 that they borrowed from Lend America. Attached to the notewas an allonge, also dated March 30, 2009, endorsed in blank without recourse andsigned by a vice-president of Lend America. The note was secured by a mortgage on thedefendants' real property located in Elmont. The mortgage provided, inter alia, thatMortgage Electronic Registration Systems, Inc. (hereinafter MERS), was acting as anominee for Lend America and its successors and assigns. On March 30, 2011, MERSassigned the mortgage to the plaintiff, Loancare, a Division of FNF Servicing, Inc.(hereinafter the plaintiff).
In June 2011, the plaintiff commenced this action to foreclose the mortgage,alleging, as relevant here, that the defendants defaulted on their loan repaymentobligations. In July 2011, the defendants answered the complaint and, inter alia, assertedas an affirmative defense that the plaintiff lacked standing. In February 2014, theplaintiff moved for summary judgment on the complaint and for an order of reference.The Supreme Court granted the plaintiff's motion, and the defendants appeal.
In a mortgage foreclosure action, a plaintiff establishes its prima facie entitlement tojudgment as a matter of law by producing the mortgage and the unpaid note, andevidence of the [*2]default (see Wells Fargo Bank, N.A. vErobobo, 127 AD3d 1176 [2015]; Wells Fargo Bank, N.A. v DeSouza, 126 AD3d 965[2015]; One W. Bank, FSB vDiPilato, 124 AD3d 735 [2015]; Wells Fargo Bank, N.A. v Ali, 122 AD3d 726 [2014]; Midfirst Bank v Agho, 121AD3d 343, 347 [2014]). Where, as here, the plaintiff's standing has been placed inissue by the defendants' answer, the plaintiff also must prove its standing as part of itsprima facie showing (see HSBCBank USA, N.A. v Baptiste, 128 AD3d 773 [2015]). In a foreclosure action, aplaintiff has standing if it is either the holder of, or the assignee of, the underlying note atthe time that the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355[2015]; see generally EmigrantSav. Bank-Brooklyn/Queens v Doliscar, 124 AD3d 831 [2015]; HSBC Bank USA vHernandez, 92 AD3d 843 [2012]).
The Supreme Court properly granted the plaintiff's motion for summary judgment onthe complaint and for an order of reference. Contrary to the defendants' contention, theplaintiff established its standing as the holder of the note by demonstrating, through theaffidavits of its assistant secretary, that the note was physically delivered to it onDecember 23, 2009 (seeKondaur Capital Corp. v McCary, 115 AD3d 649, 650 [2014]; Aurora Loan Servs., LLC vTaylor, 25 NY3d 355 [2015]), and that the mortgage was validly assigned to itprior to commencement of the action (see HSBC Bank USA, N.A. v Baptiste, 128 AD3d 773[2015]). Moreover, the plaintiff established its prima facie entitlement to judgment as amatter of law by producing the mortgage, the unpaid note, and evidence of thedefendants' default in payment (see id.; One W. Bank, FSB v DiPilato,124 AD3d at 735; Kondaur Capital Corp. v McCary, 115 AD3d at 650). Inopposition, the defendants failed to raise a triable issue of fact as to any bona fidedefense to foreclosure (seeWells Fargo Bank, N.A. v DeSouza, 126 AD3d 965 [2015]; Washington Mut. Bank vSchenk, 112 AD3d 615, 616 [2013]).
The defendants' remaining contentions are without merit or improperly raised for thefirst time on appeal. Skelos, J.P., Dillon, Duffy and LaSalle, JJ., concur.