| HSBC Bank USA, N.A. v Espinal |
| 2016 NY Slip Op 02054 [137 AD3d 1079] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, National Association,Appellant, v Cresencio Espinal, Respondent, et al.,Defendants. |
Fein, Such & Crane, LLP (D.J. & J.A. Cirando, Syracuse, NY [John A.Cirando, Bradley E. Keem, Elizabeth deV. Moller, and Hannah H. Stewart], of counsel),for appellant.
Alice A. Nicholson, Brooklyn, NY, for respondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Kurtz, J.), dated September12, 2014, as denied those branches of its motion which were for summary judgment onthe complaint and to appoint a referee to compute the amount due to the plaintiff.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and those branches of the plaintiff's motion which were for summary judgment on thecomplaint and to appoint a referee to compute the amount due to the plaintiff aregranted.
In May 2005, the defendant Cresencio Espinal executed a note in the sum of$360,000 in favor of Accredited Home Lenders, Inc. (hereinafter AHL), and delivered toMortgage Electronic Registration Systems, Inc., acting solely as nominee for AHL, amortgage on certain property located in Brooklyn to secure repayment of the note.Following Espinal's default on the mortgage loan, the plaintiff, the assignee of themortgage, commenced this action to foreclose the mortgage against Espinal and others.Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint and toappoint a referee to compute the amount due to the plaintiff. In the order appealed from,the Supreme Court, inter alia, denied the plaintiff's motion. The plaintiff appeals, and wereverse insofar as appealed from.
In moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its case as a matter of law through the production of the mortgage, the unpaidnote, and evidence of default (see Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980[2015]; Wells Fargo Bank, N.A.v Webster, 61 AD3d 856, 856 [2009]; Village Bank v Wild OaksHolding, 196 AD2d 812, 812 [1993]). Where, as here, the plaintiff's standing hasbeen placed in issue by the defendants' answer, the plaintiff also must prove its standingas part of its prima facie showing (see Deutsche Bank Natl. Trust Co. v Idarecis, 133 AD3d702 [2015]; Loancare vFirshing, 130 AD3d 787, 789 [2015]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]).A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating thatit was the holder or assignee of the underlying note at the time the action was [*2]commenced (see Deutsche Bank Natl. Trust Co. v Idarecis, 133 AD3d702 [2015]; Wells Fargo Bank, N.A. v Rooney, 132 AD3d at 980). "Either awritten assignment of the underlying note or the physical delivery of the note prior to thecommencement of the foreclosure action is sufficient to transfer the obligation" (US Bank N.A. v Faruque, 120AD3d 575, 577 [2014]).
Here, the plaintiff established, prima facie, that it had standing to commence thisforeclosure action by submitting the affidavit of Maya M. Green, a vice president of theplaintiff's loan servicer, who demonstrated that the plaintiff had physical possession ofthe note prior to the commencement of the action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355,361-362 [2015]; Wells Fargo Bank, N.A. v Rooney, 132 AD3d at 980; HSBC Bank USA, N.A. vSpitzer, 131 AD3d 1206, 1207 [2015]). The plaintiff further met its initialburden of demonstrating its prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, the mortgage, the note, and evidence of Espinal's failure to makepayments due under the note (see HSBC Bank USA, N.A. v Spitzer, 131 AD3dat 1207; Wells Fargo Bank, N.A. v Webster, 61 AD3d at 856). The plaintiff alsodemonstrated, prima facie, that it strictly complied with the notice requirement of RPAPL1304 (see JP Morgan ChaseBank, N.A. v Schott, 130 AD3d 875, 876 [2015]). In opposition, Espinal failedto raise a triable issue of fact. The remaining defendants did not appear in the action.
Accordingly, the Supreme Court should have granted those branches of the plaintiff'smotion which were for summary judgment on the complaint and to appoint a referee tocompute the amount due to the plaintiff. Dillon, J.P., Hall, Roman and Duffy, JJ.,concur.