| Deutsche Bank Natl. Trust Co. v Weiss |
| 2015 NY Slip Op 08379 [133 AD3d 704] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee ofthe Indymac Index Mortgage Loan Trust 2006-AR14, Mortgage Pass-ThroughCertificates, Series 2006-AR14 under the Pooling and Servicing Agreement DatedOctober 1, 2006, Respondent, v Brian Weiss, Appellant, et al.,Defendants. |
Law Office of Lawrence Katz PLLC, Cedarhurst, N.Y., for appellant.
McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y., and GreenbergTraurig, LLP, New York, N.Y. (Michael A. Weiss of counsel), for respondent (one brieffiled).
In an action to foreclose a mortgage, the defendant Brian Weiss appeals, as limitedby his brief, from (1) so much of an order of the Supreme Court, Nassau County (Adams,J.), dated April 25, 2014, as granted those branches of the plaintiff's motion which werefor summary judgment on the complaint insofar as asserted against him and to appoint areferee to compute the amount due to the plaintiff, and (2) so much of an order of thesame court, also dated April 25, 2014, as granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against him, tostrike his answer, and to appoint a referee to compute the amount due to theplaintiff.
Ordered that the appeal from the first order dated April 25, 2014, is dismissed, as thatorder was superseded by the second order; and it is further,
Ordered that the second order dated April 25, 2014, is reversed insofar as appealedfrom, on the law, and those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the defendant Brian Weiss, tostrike the answer of that defendant, and to appoint a referee to compute the amount dueto the plaintiff are denied, and the first order dated April 25, 2014, is vacated; and it isfurther,
Ordered that one bill of costs is awarded to the appellant.
"[I]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter oflaw through the production of the mortgage, the unpaid note, and evidence of default"(Argent Mtge. Co., LLC vMentesana, 79 AD3d 1079, 1080 [2010] [internal quotation marks omitted]; see Citimortgage, Inc. v ChowMing Tung, 126 AD3d 841, 842 [2015]; US Bank N.A. v Weinman, 123 AD3d 1108, 1109 [2014])."Where the issue of standing is raised by a defendant, a plaintiff must prove its standingin order to be entitled to relief" (HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983,983 [2015]; see Plaza Equities,LLC v Lamberti, 118 AD3d 688, 689 [2014]; U.S. Bank, N.A. v Collymore,68 AD3d 752, 753 [2009]). A plaintiff has standing in a mortgage foreclosure actionwhere it is the holder or assignee of the underlying note at the time the action iscommenced (see Aurora LoanServs., LLC v Taylor, 25 NY3d 355, 361 [2015]; HSBC Bank USA, N.A. vSpitzer, 131 AD3d 1206 [2015]). "Either a written assignment of the underlyingnote or the physical delivery of the note prior to the commencement of the foreclosureaction is sufficient to transfer the obligation, and the mortgage passes with the debt as[*2]an inseparable incident" (U.S. Bank, N.A. vCollymore, 68 AD3d at 754; see US Bank N.A. v Faruque, 120 AD3d 575, 577[2014]).
Here, the plaintiff failed to establish, prima facie, that it had standing to commencethis action. The affidavit of an assistant secretary of the plaintiff's loan servicer containedconclusory statements regarding the plaintiff's possession of the note, without any factualdetails of a physical delivery, and thus, failed to establish that the plaintiff had physicalpossession of the note prior to commencing this action (see Flagstar Bank, FSB vAnderson, 129 AD3d 665, 665-666 [2015]; US Bank N.A. v Faruque,120 AD3d at 577; DeutscheBank Natl. Trust Co. v Haller, 100 AD3d 680, 682 [2012]; cf. Aurora LoanServs., LLC v Taylor, 25 NY3d at 361). Although the assistant secretary of theplaintiff's loan servicer stated in her affidavit that the plaintiff was the holder of the note,she never stated that the plaintiff was the holder of the note at the time the action wascommenced (see Wells FargoBank, NA v Burke, 125 AD3d 765, 766-767 [2015]; U.S. Bank, N.A. v Collymore,68 AD3d 752, 754 [2009]). Furthermore, the copy of the note submitted by theplaintiff merely contained an undated indorsement by the original lender to IndyMacBank, F.S.B., and a second undated indorsement in blank (see Flagstar Bank, FSB vAnderson, 129 AD3d at 666; U.S. Bank, N.A. v Collymore, 68 AD3d at754). Finally, the written assignment of mortgage to the plaintiff dated June 19, 2012,transferred only the mortgage and, thus, failed to demonstrate that the note also wasassigned at that time (see Flagstar Bank, FSB v Anderson, 129 AD3d at 666;Wells Fargo Bank, NA v Burke, 125 AD3d at 767; US Bank N.A. vFaruque, 120 AD3d at 577).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination.
Accordingly, the Supreme Court should have denied those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted againstthe defendant Brian Weiss, to strike the answer of that defendant, and to appoint areferee to compute the amount due to the plaintiff. Mastro, J.P., Balkin, Dickerson andRoman, JJ., concur.