| JPMorgan Chase Bank, N.A. v Weinberger |
| 2016 NY Slip Op 05850 [142 AD3d 643] |
| August 24, 2016 |
| Appellate Division, Second Department |
[*1]
| JPMorgan Chase Bank, National Association,Respondent, v Leah Weinberger, Appellant, et al.,Defendants. |
Ofeck & Heinze, LLP, New York, NY (Mark F. Heinze of counsel), forappellant.
Shapiro, DiCaro & Barak, LLC, Rochester, NY (Ellis M. Oster and Richard N.Franco of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Leah Weinberger appeals (1), aslimited by her brief, from so much of an order of the Supreme Court, Kings County(Walker, J.), dated March 24, 2015, as granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against her andfor an order of reference, and denied her cross motion to compel certain discovery, and(2) from a judgment of foreclosure and sale of the same court dated December 21, 2015,which, upon the order, is in favor of the plaintiff and against her, among other things,directing the sale of the subject premises.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment of foreclosure and sale is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment of foreclosure and sale in the action(see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appealfrom the order are brought up for review and have been considered on the appeal fromthe judgment of foreclosure and sale (see CPLR 5501 [a] [1]).
The plaintiff, JPMorgan Chase Bank, National Association, commenced this actionagainst, among others, the defendant Leah Weinberger (hereinafter the homeowner) toforeclose a mortgage. Annexed to the complaint was a certified copy of the note, whichhad been endorsed in blank. The bank moved, inter alia, for summary judgment on thecomplaint insofar as asserted against the homeowner and for an order of reference. Insupport of its motion, the bank submitted, among other things, an affidavit from one ofits vice presidents, who stated that based upon her review of the bank's business records,which were maintained by the bank in the ordinary course of its business, the bank wasin physical possession of the note at the time the action was commenced. Thehomeowner opposed the bank's motion and cross-moved to [*2]compel certain discovery. In an order dated March 24,2015, the Supreme Court granted the bank's motion and denied the homeowner's crossmotion. The court subsequently entered a judgment of foreclosure and sale upon theorder.
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 (see HSBC Bank USA, N.A. vSpitzer, 131 AD3d 1206, 1206-1207 [2015]; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895,895 [2013]). Additionally, where, as here, the plaintiff's standing is placed in issue by adefendant, the plaintiff must prove its standing as part of its prima facie showing (see Flagstar Bank, FSB vMendoza, 139 AD3d 898 [2016]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009])."A plaintiff establishes its standing in a mortgage foreclosure action by demonstratingthat, when the action was commenced, it was either the holder or assignee of theunderlying note" (Dyer Trust2012-1 v Global World Realty, Inc., 140 AD3d 827, 828 [2016]; see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361-362 [2015]; Flagstar Bank, FSB v Mendoza, 139 AD3d 898 [2016])."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" (DyerTrust 2012-1 v Global World Realty, Inc., 140 AD3d at 828; see Aurora LoanServs., LLC v Taylor, 25 NY3d at 361-362).
Here, the bank established, prima facie, that it had standing to prosecute this actionby demonstrating that it was in physical possession of the note, which was annexed to thecomplaint, at the time the action was commenced (see Aurora Loan Servs., LLC vTaylor, 25 NY3d at 362; Deutsche Bank Natl. Trust Co. v Leigh, 137 AD3d 841,842 [2016]; Emigrant Bank vLarizza, 129 AD3d 904, 905 [2015]). The homeowner's contention that the vicepresident's affidavit was insufficient to establish the bank's standing since it failed to givefactual details as to the physical delivery of the note is without merit. "An indorsement inblank specifies no particular indorsee and may consist of a mere signature. An instrumentpayable to order and indorsed in blank becomes payable to bearer and may be negotiatedby delivery alone until specially indorsed" (UCC 3-204 [2]). " 'Bearer' means. . . a person in possession of a negotiable instrument" (UCC 1-201 [b] [5]).There is simply no requirement that an entity in possession of a negotiable instrumentthat has been endorsed in blank must establish how it came into possession of theinstrument in order to be able to enforce it (see UCC 3-204 [2]). Moreover, it isunnecessary to give factual details of the delivery in order to establish that possessionwas obtained prior to a particular date (see Aurora Loan Servs., LLC v Taylor, 25NY3d at 362).
The bank further sustained its burden of demonstrating its prima facie entitlement tojudgment as a matter of law by submitting the mortgage, the note, and the affidavit of itsvice president, attesting to the homeowner's default in the repayment of her mortgageloan obligation (see DeutscheBank Natl. Trust Co. v Naughton, 137 AD3d 1199, 1200 [2016]; HSBCBank USA, N.A. v Spitzer, 131 AD3d at 1206-1207; Emigrant Mtge. Co., Inc. vBeckerman, 105 AD3d at 895).
In opposition, the homeowner failed to raise a triable issue of fact. Since "physicaldelivery of the note prior to the commencement of the foreclosure action is sufficient totransfer the obligation, and the mortgage passes with the debt as an inseparable incident"(U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs.,LLC v Taylor, 25 NY3d at 361), the homeowner's arguments regarding the validityand timing of the mortgage assignment failed to raise a triable issue of fact (see Flagstar Bank, FSB vMendoza, 139 AD3d 898 [2016]). Furthermore, the homeowner's contentionthat discovery was needed to permit her to investigate the timing and validity of themortgage assignment did not provide a sufficient basis for denying the bank's motion(see Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d at 828-829).
The homeowner's remaining contention, raised for the first time on appeal, is notproperly before this Court.
Accordingly, the Supreme Court properly granted those branches of the bank'smotion which were for summary judgment on the complaint insofar as asserted againstthe homeowner and for an order of reference, and properly denied the homeowner's crossmotion to [*3]compel certain discovery. Hall, J.P.,Austin, Miller and Maltese, JJ., concur.