| Deutsche Bank Natl. Trust Co. v Logan |
| 2017 NY Slip Op 00289 [146 AD3d 861] |
| January 18, 2017 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Respondent, v Janice Wood Logan, Appellant, et al.,Defendants. |
Marco & Sitaras, PLLC, New York, NY (George Sitaras and Maurizio Anglaniof counsel), for appellant.
Ras Boriskin, LLC, Westbury, NY (Sara Z. Boriskin, Jonathan M. Cohen, and JasonCreech of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Janice Wood Logan appeals, aslimited by her brief, from (1) stated portions of an order of the Supreme Court, DutchessCounty (Brands, J.), dated October 28, 2014, and (2) so much of an order of the samecourt, also dated October 28, 2014, as granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against her, tostrike her answer, and to appoint a referee to compute the amount due to the plaintiff,and, in effect, denied her cross motion for summary judgment dismissing the complaintinsofar as asserted against her.
Ordered that the appeal from the first order dated October 28, 2014, is dismissed, asthe portions of the order appealed from were superseded by the second order datedOctober 28, 2014; and it is further,
Ordered that the second order dated October 28, 2014, is affirmed insofar asappealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In September 2006, the defendant Janice Wood Logan executed a note in the sum of$304,000 in favor of nonparty IndyMac Bank, F.S.B., which was secured by a mortgageagainst real property owned by Logan. On March 17, 2010, the plaintiff commenced thisforeclosure action after Logan defaulted on her payment obligations under the note. Thecomplaint alleged that the plaintiff was the holder of the note and mortgage. The note,which was endorsed in blank, was among several exhibits annexed to the complaint.
Logan answered the complaint, alleging, among other affirmative defenses, that theplaintiff lacked standing to maintain this foreclosure action. Subsequently, the plaintiffmoved, inter [*2]alia, for summary judgment on thecomplaint insofar as asserted against Logan, to strike her answer, and to appoint a refereeto compute the amount due to the plaintiff. Logan cross-moved for summary judgmentdismissing the complaint insofar as asserted against her. The Supreme Court, inter alia,granted the aforementioned branches of the plaintiff's motion and, in effect, deniedLogan's cross motion.
In moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its prima facie entitlement to judgment as a matter of law by producing themortgage, the note, and evidence of the default in payment (see HSBC Mtge. Servs., Inc. vRoyal, 142 AD3d 952 [2016]; Midfirst Bank v Agho, 121 AD3d 343, 347 [2014]).Where, as here, the plaintiff's standing has been placed in issue by the defendant'sanswer, the plaintiff additionally must prove its standing as part of its prima facieshowing (see Aurora LoanServs., LLC v Mercius, 138 AD3d 650, 651 [2016]; HSBC Bank USA, N.A. vBaptiste, 128 AD3d 773, 774 [2015]). "A plaintiff has standing in a mortgageforeclosure action where it is the holder or assignee of the underlying note at the time theaction is commenced" (Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683,684 [2016]; see Aurora LoanServs., LLC v Taylor, 25 NY3d 355, 361 [2015]). "Either a written assignmentof the underlying note or the physical delivery of the note prior to the commencement ofthe foreclosure action is sufficient to transfer the obligation, and the mortgage passeswith the debt as an inseparable incident" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d827, 828 [2016]; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at361-362; JPMorgan ChaseBank, N.A. v Weinberger, 142 AD3d 643, 644-645 [2016]).
Here, the plaintiff established, prima facie, that it had standing by demonstrating thatit had physical possession of the note prior to the commencement of the action, asevidenced by its attachment of the note to the summons and complaint at the time theaction was commenced (see JPMorgan Chase Bank, N.A. v Weinberger, 142AD3d at 645; Deutsche BankNatl. Trust Co. v Leigh, 137 AD3d 841, 842 [2016]; Emigrant Bank v Larizza, 129AD3d 904, 905 [2015]; Nationstar Mtge., LLC v Catizone, 127 AD3d 1151, 1152[2015]). Contrary to Logan's contention, "[t]here is simply no requirement that an entityin possession of a negotiable instrument that has been endorsed in blank must establishhow it came into possession of the instrument in order to be able to enforce it"(JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d at 645; see UCC3-204 [2]). Further, where the note is affixed to the complaint, "it is unnecessary to givefactual details of the delivery in order to establish that possession was obtained prior to aparticular date" (JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d at 645;see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 362).
Additionally, the plaintiff established its prima facie entitlement to judgment as amatter of law by producing the mortgage, the note, and evidence of Logan's default inpayment (see HSBC Bank USA, N.A. v Baptiste, 128 AD3d at 774). Inopposition, Logan failed to raise a triable issue of fact.
Logan's remaining contentions either are without merit or need not be reached inlight of our determination.
Accordingly, the Supreme Court properly granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted againstLogan, to strike her answer, and to appoint a referee to compute the amount due to theplaintiff, and, in effect, denied Logan's cross motion for summary judgment dismissingthe complaint insofar as asserted against her. Rivera, J.P., Austin, Roman and Connolly,JJ., concur.