| Onewest Bank, F.S.B. v Mazzone |
| 2015 NY Slip Op 06390 [130 AD3d 1399] |
| July 30, 2015 |
| Appellate Division, Third Department |
[*1]
| Onewest Bank, F.S.B., Respondent, v Lynn M.Mazzone, Also Known as Lynn Mazzone, et al., Appellants, et al.,Defendant. |
Mann Law Firm, PC, Latham (Matthew J. Mann of counsel), for appellants.
Greenberg Traurig, LLP, New York City (Daniel R. Milstein of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Teresi, J.), enteredNovember 14, 2013 in Albany County, which, among other things, granted plaintiff'smotion for summary judgment.
In November 2006, defendants Lynn M. Mazzone and Jeffrey Mazzone (hereinaftercollectively referred to as defendants) executed a note to borrow $172,000 from QuickenLoans and therewith executed a mortgage against their real property to secure the note. InApril 2011, plaintiff commenced this foreclosure action against defendants, amongothers, alleging that it had been assigned ownership of defendants' mortgage and noteand that defendants had failed to pay principal and interest thereon since June 2010.Defendants answered asserting, among other things, that plaintiff lacked standing tobring the foreclosure action. Plaintiff subsequently moved for, among other things,summary judgment on the complaint, which motion Supreme Court granted. Defendantsnow appeal and we affirm.
Once "the issue of standing is raised by a defendant, a plaintiff must prove itsstanding in order to be entitled to relief" (Homecomings Fin., LLC v Guldi, 108 AD3d 506, 508[2013] [internal quotations marks and citation omitted]; see Wells Fargo Bank, NA vOstiguy, 127 AD3d 1375, 1376 [2015]). "A plaintiff has standing. . . where 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" (Chase Home Fin., LLC vMiciotta, 101 AD3d 1307, 1307 [2012] [internal quotation marks and citationsomitted]; accord Wells Fargo Bank, NA v Ostiguy, 127 AD3d at [*2]1376). "Either a written assignment of the underlying noteor the physical delivery of the note prior to the commencement of the foreclosure actionis sufficient to transfer the obligation, and the mortgage passes with the debt as aninseparable incident" (U.S.Bank, N.A. v Collymore, 68 AD3d 752, 754 [2009] [citations omitted];accord Chase Home Fin., LLC v Miciotta, 101 AD3d at 1307). Here, plaintiffsubmitted the mortgage and the note, which was endorsed in blank as payable toIndyMac Bank, FSB. Plaintiff also submitted a bill of sale indicating that, in March2009, the Federal Deposit Insurance Corporation—as receiver forIndyMac—assigned to plaintiff "all right, title and interest . . . in andto those assets described in [a mortgage loan schedule]," which identifies defendants'note. Given that the mortgage passes therewith "as an inseparable incident" (U.S.Bank, N.A. v Collymore, 68 AD3d at 754), the assignment of the note by the bill ofsale was sufficient for plaintiff to make a prima facie showing that it was entitled tojudgment as a matter of law (see Chase Home Fin., LLC v Miciotta, 101 AD3d at1307; Mortgage Elec.Registration Sys., Inc. v Coakley, 41 AD3d 674, 674 [2007]; compare U.S.Bank, N.A. v Collymore, 68 AD3d at 754). Defendants' attorney affirmation wasinsufficient to raise an issue of fact as to plaintiff's standing or defendants' default, as theattorney had no personal knowledge regarding the validity of the assignment (see 2 N. St. Corp. v GettySaugerties Corp., 68 AD3d 1392, 1395 [2009], lv denied 14 NY3d 706[2010]; compare Blueberry Invs. Co. v Ilana Realty, 184 AD2d 906, 908[1992]).
As a final matter, defendants waived their argument that their obligations under thesubject note and mortgage were discharged in bankruptcy when they failed to raise it in apre-answer motion to dismiss (see CPLR 3018 [b]; 3211 [a] [5]; [e]; Rouleau v La Pointe, 11 AD3d773, 774 [2004]). In any event, such argument is without merit (see 11 USC§ 522 [c] [2]; Johnson v Home State Bank, 501 US 78, 82-84[1991]; In re Scarpino, 113 F3d 338, 340 [2d Cir 1997]). We have revieweddefendants' remaining contentions and find them to be similarly unavailing.
Peters, P.J., Egan Jr. and Rose, JJ., concur. Ordered that the order is affirmed, withcosts. [Prior Case History: 2013 NY Slip Op 32247(U).]