| U.S. Bank N.A. v Norgriff |
| 2015 NY Slip Op 06505 [131 AD3d 527] |
| August 12, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee for MASTRAsset Backed Securities Trust, 2006-WMC2, Appellant, v Shawn Norgriff et al.,Respondents. |
Hogan Lovells US LLP, New York, N.Y. (Christian Fletcher, David Dunn, andChava Brandriss of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of theSupreme Court, Kings County (Saitta, J.), dated December 1, 2009, which denied itsunopposed motion for leave to enter judgment against the defendant Shawn Norgriffupon his failure to appear or answer the complaint, for an order of reference, and forleave to amend the caption, and (2) an order of the same court dated October 15, 2013,which denied its renewed, unopposed motion for the same relief.
Ordered that the order dated December 1, 2009, is reversed, on the law, without costsor disbursements, the plaintiff's motion for leave to enter judgment against the defendantShawn Norgriff upon his failure to appear or answer the complaint, for an order ofreference, and for leave to amend the caption is granted, and the order dated October 15,2013, is vacated; and it is further,
Ordered that the appeal from the order dated October 15, 2013, is dismissed asacademic, without costs or disbursements, in light of our determination on the appealfrom the order dated December 1, 2009.
On February 28, 2006, the defendant Shawn Norgriff executed a note evidencing hisobligation to repay the sum of $504,000 to WMC Mortgage Corp. (hereinafter WMC).The note was secured by a mortgage dated February 28, 2006, executed by Norgriff, oncertain premises located in Brooklyn, in favor of Mortgage Electronic RegistrationSystems, Inc. (hereinafter MERS), acting solely as nominee for WMC. The mortgageprovided that MERS, as nominee for WCM, had the right to exercise any or all rights inthe subject property granted by the borrower in the mortgage, "including, but not limitedto, the right to foreclose and sell the Property."
Following Norgriff's failure to make mortgage payments, the plaintiff, the assigneeof the mortgage, commenced this action to foreclose the mortgage against Norgriff andothers, including "John Doe #1" through "John Doe #10." The defendants failed toappear or answer the complaint. The plaintiff moved for leave to enter judgment againstNorgriff upon his failure to [*2]appear or answer thecomplaint, for an order of reference, and for leave to amend the caption to delete thedefendants sued as "John Doe #1" through "John Doe #10." The Supreme Court deniedthe unopposed motion, concluding that there was no evidence submitted by the plaintiffthat WCM granted authority to MERS to assign its mortgage. The plaintiff thereafterfiled a renewed motion for the same relief, which the court also denied. The plaintiffappeals.
The Supreme Court erred in denying that branch of the plaintiff's motion which wasfor an order of reference. In support of its motion, the plaintiff submitted documentaryproof showing that Norgriff failed to appear or answer the complaint within the timeallowed, that it was the holder of the mortgage and note, that Norgriff defaulted thereon,and that, as a preliminary step in obtaining a judgment of foreclosure, the appointment ofa referee to compute the amount due on the mortgage would be proper (seeRPAPL 1321; HSBC BankUSA, N.A. v Alexander, 124 AD3d 838 [2015]; Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225 [2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 816[2013]; Bank of N.Y. vAlderazi, 99 AD3d 837, 837-838 [2012]; Aurora Loan Servs., LLC v Shahmela Shah Sookoo, 92 AD3d705, 707 [2012]; EmigrantMtge. Co., Inc. v Fisher, 90 AD3d 823, 824 [2011]). Contrary to the SupremeCourt's determination, by the terms of the mortgage, which was submitted by the plaintiffin support of its motion, WCM granted MERS authority to assign its mortgage (see Saxon Mtge. Servs., Inc. vCoakley, 83 AD3d 1038, 1039 [2011]). Moreover, the plaintiff established thatit had standing to maintain this action by demonstrating that it was in possession of theoriginal note prior to the commencement of this action (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361 [2015]).
The Supreme Court also erred in denying that branch of the plaintiff's unopposedmotion which was for leave to enter judgment against the defendants. By submittingproof of service of a copy of the summons and complaint, proof of the facts constitutingthe claim, and proof of Norgriff's failure to answer or appear, the plaintiff demonstratedits entitlement to a default judgment against Norgriff (see CPLR 3215 [f];HSBC Bank USA, N.A. v Alexander, 124 AD3d at 839; U.S. Bank, N.A. v Razon, 115AD3d 739, 740 [2014]; Mortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d804, 806 [2013]; Loaiza vGuzman, 111 AD3d 608, 609 [2013]).
Finally, the plaintiff demonstrated that the caption should be amended (seeCPLR 1024; HSBC Bank USA, N.A. v Alexander, 124 AD3d at 840; Deutsche Bank Natl. Trust Co. vIslar, 122 AD3d 566, 568 [2014]). Accordingly, the Supreme Court should havegranted that branch of the plaintiff's unopposed motion which was for leave to amend thecaption. Rivera, J.P., Austin, Cohen and Duffy, JJ., concur.