| U.S. Bank N.A. v Carnivale |
| 2016 NY Slip Op 02701 [138 AD3d 1220] |
| April 7, 2016 |
| Appellate Division, Third Department |
[*1]
| U.S. Bank National Association, as Trustee for J.P.Morgan Mortgage Trust 2006-S4, Respondent, v Frank A. Carnivale, Also Known asFrank A. Carnevale, Appellant. |
Rusk, Waldin, Heppner & Martuscello, LLP, Kingston (Jason J. Kovacs ofcounsel), for appellant.
Eckert Seamans Cherin & Mellot, LLC, White Plains (David V. Mignardi ofcounsel), for respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Melkonian, J.), enteredAugust 6, 2014 in Ulster County, which, among other things, granted plaintiff's motionfor summary judgment.
In September 2006, defendant executed a note in favor of American Brokers Conduitthat was secured by a mortgage on real property located in Ulster County. Whendefendant stopped making payments on the note, plaintiff commenced this action inSeptember 2012 to foreclose on the mortgage. Following joinder of issue, plaintiffmoved for summary judgment striking defendant's answer and appointing a referee tocompute the amount due and owing. Defendant cross-moved for, among other things,dismissal of the complaint on the ground that plaintiff lacked standing. Supreme Courtgranted plaintiff's motion and denied defendant's cross motion. Defendant appeals, andwe affirm.
Plaintiff produced evidence of the mortgage, the unpaid note and defendant's default,thereby establishing its prima facie entitlement to summary judgment in this foreclosureaction (see Deutsche Bank Natl.Trust Co. v Monica, 131 AD3d 737, 738 [2015]; Wells Fargo Bank, NA vOstiguy, 127 AD3d 1375, 1376 [2015]). Defendant challenged plaintiff'sstanding to maintain the action, thus requiring plaintiff to further demonstrate that it was"both the holder or assignee of the subject mortgage and the holder or assignee of theunderlying note at the time the [*2]action [was]commenced" (Chase Home Fin.,LLC v Miciotta, 101 AD3d 1307, 1307 [2012] [internal quotation marks andcitations omitted]; accord Wells Fargo Bank, NA v Ostiguy, 127 AD3d at 1376)."Either a written assignment of the underlying note or the physical delivery of the noteprior to the commencement of the foreclosure action is sufficient to transfer theobligation, and the mortgage passes with the debt as an inseparable incident" (Onewest Bank, F.S.B. vMazzone, 130 AD3d 1399, 1400 [2015] [internal quotation marks and citationomitted]; accord Wells FargoBank, N.A. v Rooney, 132 AD3d 980, 981-982 [2015]; see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361-362 [2015]).
Plaintiff alleged that it had standing through its physical possession of the note at thetime of the commencement of the action. "Since the note has only an undatedindorsement in blank from the original lender, it does not evidence plaintiff's possessoryinterest" (Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d at 738-739[citation omitted]; see Bank ofAm., N.A. v Kyle, 129 AD3d 1168, 1169 [2015]). To establish actual physicalpossession, plaintiff produced the affidavit of an assistant secretary of JP Morgan ChaseBank, N.A., the custodian and loan servicing agent for the trust for which plaintiff servesas trustee. The assistant secretary averred that, upon her review of the records kept andmaintained by JP Morgan Chase and its subsidiary in the ordinary course of business, JPMorgan Chase received the original note on October 19, 2006 and maintains possessionof the note at its storage facility in Louisiana. Plaintiff also proffered the affidavit of JPMorgan Chase's vice-president, who confirmed that JP Morgan Chase had possession ofthe note when this action was commenced. While "the better practice" would have beenfor plaintiff to submit evidence showing exactly how JP Morgan Chase, as custodian ofthe trust, came into possession of the note (Aurora Loan Servs., LLC v Taylor, 25NY3d at 362), the foregoing evidence was sufficient to establish, prima facie, that thenote was delivered to plaintiff's custodian prior to the commencement of this foreclosureaction and remained in its possession at the time the action was commenced (seeid. at 359-362; EverhomeMtge. Co. v Pettit, 135 AD3d 1054, 1055 [2016]; JPMorgan Chase Bank, N.A. vMantle, 134 AD3d 903, 904-905 [2015]; HSBC Bank USA, N.A. v Sage, 112 AD3d 1126, 1127[2013], lvs dismissed 22 NY3d 1172 [2014], 23 NY3d 1015 [2014]; compare JP Morgan Chase Bank,N.A. v Hill, 133 AD3d 1057, 1058-1059 [2015]).[FN*]
In opposition, defendant offered no evidence to contradict the factual averments bythe assistant secretary and vice-president. Furthermore, defendant lacks standing tochallenge plaintiff's possession of the note based on a purported noncompliance withcertain provisions of the applicable pooling and servicing agreement (see Bank of Am. N.A. vPatino, 128 AD3d 994, 994-995 [2015], lv dismissed 26 NY3d 975[2015]; Wells Fargo Bank, N.A.v Erobobo, 127 AD3d 1176, 1178 [2015], lv dismissed 25 NY3d 1221[2015]; Bank of N.Y. Mellon vGales, 116 AD3d 723, 725 [2014]; see also Rajamin v Deutsche Bank Natl.Trust Co., 757 F3d 79, 87 [2d Cir 2014]). As defendant's submissions failed to raiseany triable issues of fact with respect to plaintiff's standing, Supreme Court properlygranted summary judgment in plaintiff's favor.
[*3] Garry, Rose, Devine and Clark, JJ., concur. Orderedthat the order is affirmed, with costs.
Footnote *:This case does notpresent the same concerns as those raised in JP Morgan Chase Bank, N.A. v Hill (133 AD3d 1057[2015]). There, unlike here, there was evidence that a prior foreclosure action had beencommenced by a different entity during the period of time in which the plaintiff bankclaimed to have possessed the original note, and, further, the defendants therein hadmoved for an order directing the plaintiff to produce the original "wet-ink" note, andmade the same demand in their answer (id. at 1058-1059).