| JPMorgan Chase Bank, N.A. v Mantle |
| 2015 NY Slip Op 09256 [134 AD3d 903] |
| December 16, 2015 |
| Appellate Division, Second Department |
[*1]
| JPMorgan Chase Bank, National Association,Respondent, v Michele A. Mantle, Also Known as Michele Mantle,Appellant. |
Kim DSouza, LaGrangeville, NY, for appellant.
Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, NY (Andrew Kazinand Matthew B. Corwin of counsel), for respondent.
In an action to foreclose a mortgage, the defendant appeals (1), as limited by herbrief, from so much of an order of the Supreme Court, Westchester County (Smith, J.),dated October 31, 2013, as denied her motion, inter alia, to return the action to theforeclosure settlement conference part and for leave to conduct discovery while it waspending there, and granted those branches of the plaintiff's cross motion which were forsummary judgment on the complaint and dismissing her counterclaim alleging violationof the Fair Debt Collection Practices Act (15 USC § 1692 et seq.),(2) from an order of reference of the same court dated November 8, 2013, which, amongother things, referred the matter to a referee to ascertain and compute the amount due onthe mortgage loan, (3) from an order of the same court dated February 4, 2014, whichdenied her motion for leave to reargue her prior motion, inter alia, to return the action tothe foreclosure settlement conference part and for leave to conduct discovery while itwas pending there and her opposition to the plaintiff's prior cross motion, inter alia, forsummary judgment on the complaint and dismissing her counterclaim alleging violationof the Fair Debt Collection Practices Act, (4) from an order of the same court datedMarch 17, 2014, which granted the plaintiff's motion for a judgment of foreclosure andsale, and (5) from a judgment of foreclosure and sale of the same court dated March 17,2014.
Ordered that the appeals from the orders are dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeals from the intermediate orders dated October 31, 2013, and March 17,2014, must be dismissed because the right of direct appeal therefrom terminated with theentry of a judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]).The issues raised on the appeals from those orders are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [c]). Theappeal from the order of reference dated November 8, 2013, is [*2]dismissed, as the order is not appealable as of right, andleave to appeal has not been granted (see Levitin v Boardwalk Capital, LLC, 78 AD3d 1019[2010]; Security Natl. Servicing Corp. v Liebowitz, 281 AD2d 615 [2001]). Theappeal from the order dated February 4, 2014, must be dismissed because no appeal liesfrom an order denying a motion for leave to reargue (see Mitchell v Lograno, 108 AD3d 689, 690 [2013]).
The Supreme Court properly denied the defendant's motion, inter alia, to return theaction to the foreclosure settlement conference part and for leave to conduct discoverywhile it was pending there. The defendant failed to establish that she had a genuineinterest in negotiating a trial loan modification. Similarly, she did not demonstrate anybasis for departing from the rules of the Westchester County foreclosure settlementconference part, which expressly bar discovery during the time a case is assigned to thatpart.
The Supreme Court properly granted that branch of the plaintiff's cross motion whichwas for summary judgment on the complaint. In a mortgage foreclosure action, a plaintiffestablishes its prima facie entitlement to judgment as a matter of law by producing themortgage and the unpaid note, and evidence of the default (see Loancare v Firshing, 130AD3d 787, 788 [2015]; Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176, 1177[2015]; Wells Fargo Bank, N.A.v DeSouza, 126 AD3d 965 [2015]). Where, as here, the plaintiff's standing hasbeen placed in issue by the defendant's answer, the plaintiff also must prove its standingas part of its prima facie showing (see Loancare v Firshing, 130 AD3d at 789; HSBC Bank USA, N.A. vBaptiste, 128 AD3d 773, 774 [2015]). In a foreclosure action, a plaintiff hasstanding if it is the holder of, or the assignee of, the underlying note at the time the actionis commenced (see Aurora LoanServs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]; Loancare vFirshing, 130 AD3d at 789; Emigrant Bank v Larizza, 129 AD3d 904, 905 [2015]; U.S. Bank, N.A. v Collymore,68 AD3d 752, 754 [2009]).
Here, the plaintiff established its standing as the holder of the note by demonstratingthrough the affidavits of an assistant secretary and vice president that the note, endorsedin blank by the original lender, was physically delivered to it prior to the commencementof this foreclosure action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at362; HSBC Bank USA, N.A. vSage, 112 AD3d 1126, 1127 [2013]; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d674 [2007]). Moreover, the plaintiff established its prima facie entitlement tojudgment as a matter of law by producing copies of the mortgage, the unpaid note, andevidence of the defendant's default in payment (see Loancare v Firshing, 130AD3d at 789; Emigrant Bank v Larizza, 129 AD3d at 905; HSBC Bank USA,N.A. v Baptiste, 128 AD3d at 774). In opposition, the defendant failed to raise atriable issue of fact as to any bona fide defense to foreclosure.
The Supreme Court also properly granted that branch of the plaintiff's cross motionwhich was for summary judgment dismissing the defendant's counterclaim allegingviolation of the Fair Debt Collection Practices Act (15 USC § 1692 etseq. [hereinafter the FDCPA]). The plaintiff established, prima facie, that theFDCPA does not apply to it inasmuch as it acquired the right to service the defendant'sloan prior to her default (see 15 USC § 1692a [6] [F] [iii]; Rothv CitiMortgage Inc., 756 F3d 178, 183 [2d Cir 2014]). In opposition, the defendantfailed to raise a triable issue of fact. Mastro, J.P., Dickerson, Roman and Maltese, JJ.,concur.