| Bank of Am., N.A. v O'Gorman |
| 2016 NY Slip Op 02308 [137 AD3d 1179] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Bank of America, N.A., Respondent, v EdwardJ. O'Gorman et al., Appellants, et al., Defendants. |
Edward J. O'Gorman, Pawling, NY, appellant pro se and for appellant Deborah A.O'Gorman.
Fein, Such & Crane, LLP, Westbury, NY (Michael Hanusek of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Edward J. O'Gorman andDeborah A. O'Gorman appeal from an order of the Supreme Court, Dutchess County(Brands, J.), dated March 19, 2015, which granted the plaintiff's motion, inter alia, forsummary judgment on the complaint and for an order of reference.
Ordered that the order is affirmed, with costs.
The plaintiff's standing to prosecute this action was placed in issue by the appellantsin their answer (see Wells FargoBank, N.A. v Charlaff, 134 AD3d 1099, 1099 [2015]; Deutsche Bank Natl. Trust Co. vIdarecis, 133 AD3d 702 [2015]). Therefore, the plaintiff had the burden ofproving its standing "as part of its prima facie showing on [its] motion for summaryjudgment" (Deutsche Bank Natl. Trust Co. v Idarecis, 133 AD3d at 703; see Wells Fargo Bank, N.A. vRooney, 132 AD3d 980 [2015]). On appeal, the appellants contend that theplaintiff failed to establish standing to maintain this action.
In an action to foreclose a mortgage, a plaintiff has standing if it is the holder orassignee of the underlying note when the action is commenced (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361-362 [2015]; HSBC Bank USA v Hernandez, 92 AD3d 843 [2012]; Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 108 [2011]). " 'Either a written assignment ofthe underlying note or the physical delivery of the note prior to the commencement of the. . . action is sufficient to transfer the obligation' " (HSBC Bank USA vHernandez, 92 AD3d 843, 844 [2012], quoting U.S. Bank, N.A. v Collymore,68 AD3d 752, 754 [2009]; see Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099[2015]; Citimortgage, Inc. vGoldberg, 134 AD3d 880 [2015]). The mortgage passes with the debt as aninseparable incident (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 109,citing U.S. Bank, N.A. v Collymore, 68 AD3d at 754).
Here, the plaintiff's submissions established that an entity known as "CountrywideHome Loans Servicing, LP" (hereinafter Countrywide LP), had acquired physicalpossession of the subject promissory note at some point in time prior to July 1, 2008,coincident with the endorsement [*2]of the note, by aprior holder, to another entity known as "Countrywide Home Loans, Inc." The plaintiff'ssubmissions also demonstrated that Countrywide LP "at all times maintained physicalpossession of the original [promissory] [n]ote," that Countrywide LP was later renamed"BAC Home Loans Servicing LP," and that this newly named limited partnership thenmerged into the plaintiff, effective July 1, 2011, prior to the commencement of the actionon November 29, 2012. Contrary to the appellants' contentions, the plaintiff'ssubmissions were sufficient to make a prima facie showing of standing by virtue of itspre-commencement physical possession of the note (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355[2015], affg 114 AD3d 627 [2014]; see also Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980[2015]; HSBC Bank USA, N.A.v Spitzer, 131 AD3d 1206 [2015]; Nationstar Mtge., LLC v Catizone, 127 AD3d 1151 [2015];Wells Fargo Bank, N.A. vParker, 125 AD3d 848 [2015]; Kondaur Capital Corp. v McCary, 115 AD3d 649 [2014];Deutsche Bank Natl. Trust Co. vWhalen, 107 AD3d 931 [2013]; cf. Deutsche Bank Natl. Trust Co. v Idarecis, 133 AD3d702 [2015]).
In opposition to the plaintiff's prima facie showing of entitlement to judgment as amatter of law, the appellants failed to raise a triable issue of fact, and the appellants'remaining contentions are without merit. Accordingly, the Supreme Court properlygranted the plaintiff's motion, inter alia, for summary judgment on the complaint and foran order of reference. Mastro, J.P., Hall, Miller and LaSalle, JJ., concur.