| HSBC Bank USA, N.A. v Lewis |
| 2015 NY Slip Op 09066 [134 AD3d 764] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, N.A., Appellant, v WilliamLewis, Also Known as William A. Lewis, et al., Respondents, et al.,Defendants. |
Hinshaw & Culbertson LLP, New York, N.Y. (Alan F. Kaufman and HanSheng Beh of counsel), for appellant.
Michael Kennedy Karlson, New York, N.Y., for respondents.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Sherman, J.), dated November 20, 2013, which grantedthe motion of the defendants William Lewis, also known as William A. Lewis, and EvaLewis pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted againstthem for lack of standing.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendants William Lewis, also known as William A. Lewis, and Eva Lewis pursuant toCPLR 3211 (a) to dismiss the complaint insofar as asserted against them for lack ofstanding is denied.
The plaintiff commenced this action to foreclose a mortgage. The defendantsWilliam Lewis, also known as William A. Lewis, and Eva Lewis (hereinafter togetherthe defendants) moved pursuant to CPLR 3211 (a) to dismiss the complaint insofar asasserted against them for lack of standing. The defendants contended that the assignmentof the mortgage to the plaintiff from the original mortgagee was invalid because theassignment was made without the approval of the United States Bankruptcy Court afterthe original mortgagee had filed a petition for Chapter 11 bankruptcy protection.
"In a foreclosure action, a plaintiff has standing if it is either the holder of, or theassignee of, the underlying note at the time that the action is commenced" (Loancare v Firshing, 130AD3d 787, 789 [2015]). "[T]he note, and not the mortgage, is the dispositiveinstrument that conveys standing to foreclose under New York law because the transferin full of the underlying obligation automatically transfers the mortgage as well unlessthe parties agree that the transferor is to retain the mortgage" (Deutsche Bank Trust Co. Ams. vVitellas, 131 AD3d 52, 59 [2015] [internal quotation marks omitted]). On amotion pursuant to CPLR 3211 (a) to dismiss a complaint for lack of standing, "theburden is on the moving defendant to establish, prima facie, the plaintiff's lack ofstanding, rather than on the plaintiff to affirmatively establish its standing in order for themotion to be denied" (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d at59-60). Here, the defendants failed to eliminate questions of fact regarding whether theunderlying note was assigned to the plaintiff prior to the filing of the bankruptcy petition,giving the plaintiff standing to commence this action. Accordingly, the Supreme Courtshould have denied the motion. Mastro, J.P., Dickerson, Roman and Maltese, JJ.,concur.