| Flagstar Bank, FSB v Mendoza |
| 2016 NY Slip Op 03849 [139 AD3d 898] |
| May 18, 2016 |
| Appellate Division, Second Department |
[*1]
| Flagstar Bank, FSB, Respondent, v IngridMendoza et al., Appellants, et al., Defendants. |
Alice A. Nicholson, Brooklyn, NY, for appellants.
Stein, Wiener & Roth, LLP, Carle Place, NY (Robert C. Sambursky and RuthTaranto of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Ingrid Mendoza, Jose Mendoza,and Christopher Mendoza appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Queens County (Raffaele, J.), entered March 11, 2014, as grantedthose branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against them and to appoint a referee, and denied their crossmotion for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2008, the defendants Ingrid Mendoza, Jose Mendoza, and Christopher Mendoza(hereinafter collectively the appellants) obtained a mortgage loan from NationwideEquities Corp. (hereinafter Nationwide). The appellants do not dispute that theydefaulted on their mortgage payments in October of 2010. In May 2011, the plaintiffcommenced this action to foreclose on the appellants' mortgage.
To establish a prima facie case in an action to foreclose a mortgage, a plaintiff mustproduce "the mortgage, the unpaid note, and evidence of default" (Emigrant Mtge. Co., Inc. vBeckerman, 105 AD3d 895, 895 [2013] [internal quotation marks omitted]; see Wells Fargo Bank, N.A. vCharlaff, 134 AD3d 1099 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206,1206-1207 [2015]). Additionally, where, as here, the plaintiff's standing is placed inissue by a defendant, the plaintiff must prove its standing as part of its prima facieshowing (see HSBC Bank USA, N.A. v Spitzer, 131 AD3d at 1207; Wachovia Mtge. Corp. v Lopa,129 AD3d 830, 830-831 [2015]). "A plaintiff establishes its standing in a mortgageforeclosure action by demonstrating that it is either the holder or assignee of theunderlying note at the time the action is commenced" (Wells Fargo Bank, N.A. vGallagher, 137 AD3d 898, 899 [2016]; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355,360-362 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d at 1207). "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" (Onewest, F.S.B. v Goddard,131 AD3d 1028, 1029 [2015]; see Aurora Loan Servs., LLC vTaylor, 25 NY3d at 361; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754[2009]). Here, in support of its motion, the plaintiff produced the mortgage, the unpaidnote, and evidence of default. In addition, by submitting the note, which included anendorsement by Nationwide to the plaintiff, and affidavits by the plaintiff's foreclosureanalysts that the plaintiff obtained possession of the note by physical delivery prior tocommencing the instant foreclosure action, as evidenced by the plaintiff's tracking barcode system, the plaintiff demonstrated, prima facie, that it had standing to [*2]commence the action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355[2015]; Wells Fargo Bank, N.A.v Gallagher, 137 AD3d 898 [2016]; LNV Corp. v Francois, 134 AD3d 1071 [2015]). Since"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), the appellants' argumentsregarding the validity and timing of the mortgage assignment failed to raise a triableissue of fact in opposition.
In addition, the plaintiff submitted an affidavit of an associate attorney with the firmthat represented the plaintiff, in which the attorney described the firm's standard businesspractice with regard to sending RPAPL 1304 90-day notices to borrowers, and affirmed,based on the business records he reviewed regarding the subject loan, that the notices hadbeen sent out to the appellants in compliance with the requirements of RPAPL 1304. Theplaintiff also submitted copies of the RPAPL 1304 notices sent to the appellants andcopies of the domestic return receipts, with date of delivery and signature of one of theappellants. The plaintiff thereby tendered sufficient evidence demonstrating the absenceof material issues as to its strict compliance with RPAPL 1304 (see Zarabi v Movahedian, 136AD3d 895, 895 [2016]; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106[2011]; cf. Bank of N.Y. Mellonv Aquino, 131 AD3d 1186, 1187 [2015]). The evidence establishing theappropriate mailing of the required notices created a rebuttable presumption that theintended recipients actually received them (see Grogg v South Rd. Assoc., L.P., 74 AD3d 1021, 1022[2010]; see also Emigrant Mtge.Co., Inc. v Persad, 117 AD3d 676, 677 [2014]). In opposition, the appellantsfailed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted againstthe appellants, and to appoint a referee. For the same reasons, the Supreme Courtproperly denied the appellants' cross motion for summary judgment dismissing thecomplaint insofar as asserted against them. Hall, J.P., Cohen, Miller and Barros, JJ.,concur.