| U.S. Bank N.A. v Godwin |
| 2016 NY Slip Op 02353 [137 AD3d 1260] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee on Behalfof the SASCO 2006-BC3 Trust Fund, Appellant, v Glenda Godwin et al.,Respondents, et al., Defendants. |
Bryan Cave LLP, New York, NY (Suzanne M. Berger and Carolyn K. BrooksRincon of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Suffolk County (Garguilo, J.), dated January30, 2014, as, upon reargument, adhered to a prior determination in an order of the samecourt dated June 3, 2013, denying its motion for summary judgment on the complaint anddismissing the affirmative defenses and counterclaims of the defendants Glenda Godwinand Richard Godwin, and for an order of reference.
Ordered that the order dated January 30, 2014, is reversed insofar as appealed from,on the law, with costs, and, upon reargument, the determination in the order dated June 3,2013, denying the plaintiff's motion for summary judgment on the complaint anddismissing the affirmative defenses and counterclaims of the defendants Glenda Godwinand Richard Godwin, and for an order of reference, is vacated, and thereupon, theplaintiff's motion is granted.
The defendants Glenda Godwin and Richard Godwin (hereinafter together thehomeowners) executed a note in favor of the plaintiff's predecessor-in-interest promisingto repay a loan in the sum of $318,750, which was secured by a mortgage encumberingcertain real property in Farmingdale that they owned. The plaintiff commenced thisaction to foreclose on the mortgage, alleging that the homeowners had defaulted underthe terms of the mortgage and note. The plaintiff moved, inter alia, for summaryjudgment on the complaint, and the homeowners cross-moved, inter alia, to dismiss thecomplaint for lack of standing. The Supreme Court denied the motion and the crossmotion. The plaintiff moved for leave to reargue its motion and, upon reargument, theSupreme Court adhered to its original determination denying the plaintiff's motion. Theplaintiff appeals.
"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" (Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980, 981[2015] [internal quotation marks omitted]; see Bayview Loan Servicing, LLC v 254 Church St., LLC, 129AD3d 650 [2015]; Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841,842 [2015]; Aurora LoanServs., LLC v Enaw, 126 AD3d 830 [2015]). In addition, where, as here, theplaintiff's standing to commence the action is placed in issue by a defendant, the plaintiffmust establish its standing to be entitled to relief (see Wells Fargo Bank, N.A. vRooney, 132 AD3d at 981; Loancare v Firshing, 130 AD3d 787, 788 [2015]; Wachovia Mtge. Corp. v Lopa,129 AD3d 830, 830-831 [2015]; Citimortgage, Inc. v Chow Ming Tung, 126AD3d at 842). "A plaintiff establishes its standing in a mortgage foreclosure action bydemonstrating that, when the action was commenced, it was either the holder or assigneeof the underlying note" (Wells [*2]Fargo Bank, N.A.v Rooney, 132 AD3d at 981; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361[2015]; YMJ Meserole, LLC v98 Meserole St., LLC, 133 AD3d 848, 849 [2015]; U.S. Bank, N.A. v Collymore,68 AD3d 752, 753 [2009]). "Either a written assignment of the underlying note orthe physical delivery of the note prior to the commencement of the foreclosure action issufficient to transfer the obligation, and the mortgage passes with the debt as aninseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; seeAurora Loan Servs., LLC v Taylor, 25 NY3d at 361; YMJ Meserole, LLC v 98Meserole St., LLC, 133 AD3d at 849; Wells Fargo Bank, N.A. v Rooney,132 AD3d at 981).
Here, an affidavit from an assistant vice president of the loan's servicer establishedthat the note, indorsed in blank, was transferred to the plaintiff from itspredecessor-in-interest by physical delivery on July 5, 2006, over three years before thisaction was commenced. Contrary to the Supreme Court's conclusion, this evidence thatthe note was physically delivered to the plaintiff prior to the commencement of thisaction was sufficient to establish, prima facie, the plaintiff's standing as the holder of thenote and mortgage (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361;YMJ Meserole, LLC v 98 Meserole St., LLC, 133 AD3d at 849; Wells FargoBank, N.A. v Rooney, 132 AD3d at 981; Kondaur Capital Corp. v McCary, 115 AD3d 649, 650[2014]; cf. U.S. Bank, N.A. v Collymore, 68 AD3d at 754). In addition, theplaintiff established its prima facie entitlement to judgment as a matter of law byproducing the mortgage, the unpaid note, and the affidavit of an employee of the servicerattesting to the homeowners' default in making payments due under the mortgage (seeYMJ Meserole, LLC v 98 Meserole St., LLC, 133 AD3d at 850; Wells FargoBank, N.A. v Rooney, 132 AD3d at 982; Loancare v Firshing, 130 AD3d at789). In opposition, the homeowners failed to raise a triable issue of fact as to any bonafide defense to foreclosure (see YMJ Meserole, LLC v 98 Meserole St., LLC,133 AD3d at 850; Wells Fargo Bank, N.A. v Rooney, 132 AD3d at 982;Loancare v Firshing, 130 AD3d at 789).
Accordingly, upon reargument, the Supreme Court should have granted the plaintiff'smotion for summary judgment on the complaint and dismissing the homeowners'affirmative defenses and counterclaims, and for an order of reference. Mastro, J.P., Hall,Miller and LaSalle, JJ., concur.