| Wells Fargo Bank, N.A. v Charlaff |
| 2015 NY Slip Op 09673 [134 AD3d 1099] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., as Trustee for ABFC2006-OPT2 Trust, ABFC Asset Backed Certificates, Series 2006-OPT2,Respondent, v David Charlaff, Also Known as David S. Charlaff,Defendant/Third-Party Plaintiff-Appellant, and Cynthia Kouril, Appellant, et al.,Defendants. Moss Codilis, LLP, Third-Party Defendant, and AHMSI, Inc., Third-PartyDefendant-Respondent. |
David Charlaff, Glen Cove, NY, defendant third-party plaintiff-appellant pro se, andCynthia Kouril, Glen Cove, NY, defendant-appellant pro se (one brief filed).
Hinshaw & Culbertson, New York, NY (Annmarie D'Amour and Schuyler B.Kraus of counsel), for plaintiff-respondent and third-party defendant-respondent.
In an action to foreclose a mortgage, David Charlaff, also known as David S.Charlaff, and Cynthia Kouril appeal from an order of the Supreme Court, Nassau County(Adams, J.), entered December 2, 2013, which granted the renewed motion of theplaintiff and the third-party defendant AHMSI, Inc., for summary judgment on thecomplaint and dismissing the third-party complaint insofar as asserted against AHMSI,Inc., and denied their cross motion to compel additional disclosure.
Ordered that the order is affirmed, with costs.
"Generally, in moving for summary judgment in an action to foreclose a mortgage, aplaintiff establishes its prima facie case through the production of the mortgage, theunpaid note, and evidence of default" (Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001,1002 [2015] [internal quotation marks omitted]; see HSBC Bank, USA v Hagerman, 130 AD3d 683,683-684 [2015]; Plaza Equities,LLC v Lamberti, 118 AD3d 688, 689 [2014]). However, where a plaintiff'sstanding to commence a foreclosure action is placed in issue by the defendant, "it isincumbent upon the plaintiff to prove its standing to be entitled to relief" (Wells Fargo Bank, N.A. vArias, 121 AD3d 973, 973-974 [2014] [internal quotation marks omitted];see Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d at 1002; PlazaEquities, LLC v Lamberti, 118 AD3d at 689).
In a mortgage foreclosure action, a plaintiff has standing where it is the holder orassignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361 [2015]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754[2009]). "Either a written assignment of the underlying note or the physical delivery ofthe note prior to the commencement of the foreclosure action is sufficient to transfer theobligation, and the mortgage passes with the debt as an inseparable incident" (U.S.Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC vTaylor, 25 NY3d at 361-362; Bank of N.Y. v Silverberg, 86 AD3d 274, 280[2011]).
[*2] Here, the plaintiff and thethird-party defendant AHMSI, Inc. (hereinafter together the respondents), establishedtheir prima facie entitlement to judgment as a matter of law by producing copies of theunpaid note, the mortgage, and evidence of default (see e.g. Deutsche Bank Natl.Trust Co. v Abdan, 131 AD3d at 1002; HSBC Bank, USA v Hagerman, 130 AD3d 683, 683-684[2015]; Emigrant Bank vLarizza, 129 AD3d 904, 905 [2015]). Further, by submitting the affidavit of avice president of the plaintiff, which established that the plaintiff had physical possessionof the note when it commenced this action, the respondents also met their prima facieburden of establishing their entitlement to summary judgment dismissing the affirmativedefense of lack of standing (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at359-360; Wells Fargo Bank, N.A. v Arias, 121 AD3d at 974). In opposition,David Charlaff, also known as David S. Charlaff, and Cynthia Kouril (hereinaftertogether the defendants) failed to raise a triable issue of fact. Because "the mortgagepasses as an incident to the note" (Aurora Loan Servs., LLC v Taylor, 25 NY3dat 361 [internal quotation marks omitted]), the validity of either purported assignment ofthe mortgage—that signed by Katherine Burns on August 18, 2006, or that signedby Cheryl Thomas and Tywanna Thomas on November 13, 2009—is irrelevant tothe issue of the plaintiff's standing, or to the respondents' entitlement to summaryjudgment.
The defendants' contention that Charlaff is a third-party beneficiary to the Poolingand Servicing Agreement pursuant to which the subject loan was transferred to theplaintiff, a trust, is without merit (see Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176,1178 [2015]; Bank of N.Y.Mellon v Gales, 116 AD3d 723, 725 [2014]). The defendants' contention thatthe respondents' summary judgment motion was barred by the denial of a prior motionfor summary judgment is also without merit (see Allstate Ins. Co. v Liberty Lines Tr., Inc., 50 AD3d712, 713 [2008]). The defendants' remaining contentions are also without merit.
The parties' contentions regarding the creation of a purported life estate are notproperly before this Court, as they are based on matter dehors the record. Mastro, J.P.,Dickerson, Roman and Maltese, JJ., concur.