| U.S. Bank N.A. v Saravanan |
| 2017 NY Slip Op 00505 [146 AD3d 1010] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee for Banc ofAmerica Funding 2006-1, Respondent, v Muthiah Saravanan, Appellant, et al.,Defendants. |
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Juan Paolo F.Dizon of counsel), for appellant.
Ballard Spahr LLP, New York, NY (Justin Angelo of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Muthiah Saravanan appeals, aslimited by his brief, from so much of an order of the Supreme Court, Rockland County(Kelly, J.), dated October 17, 2014, as, in effect, granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted againsthim and to appoint a referee to compute the amount due.
Ordered that the order is affirmed insofar as appealed from, with costs.
To establish a prima facie case in an action to foreclose a mortgage, a plaintiff mustproduce the mortgage, the note, and evidence of default (see JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d 643, 644 [2016]; Federal Natl. Mtge. Assn. v Yakaputz II, Inc., 141 AD3d506 [2016]; HSBC BankUSA, N.A. v Spitzer, 131 AD3d 1206, 1206-1207 [2015]; US Bank N.A. v Weinman,123 AD3d 1108, 1109 [2014]). In addition, where, as here, standing is placed inissue by a defendant, the plaintiff is required to prove its standing in order to be entitledto relief (see JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d at 644;Federal Natl. Mtge. Assn. v Yakaputz II, Inc., 141 AD3d at 506-507; Deutsche Bank Natl. Trust Co. vWeiss, 133 AD3d 704, 705 [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 (seeAurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]). "Either a writtenassignment of the underlying note or the physical delivery of the note prior to thecommencement of the foreclosure action is sufficient to transfer the obligation, and themortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore,68 AD3d 752, 754 [2009]; see Federal Natl. Mtge. Assn. v Yakaputz II, Inc.,141 AD3d at 507).
Here, the plaintiff established its standing as the holder of the note by demonstratingthat the note was in its possession prior to the commencement of the action, as evidencedby its attachment of the endorsed note to the summons and complaint at the time theaction was commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 362;JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d at 645; Deutsche Bank Natl. Trust Co. vLeigh, 137 AD3d 841, 842 [2016]; Nationstar Mtge., LLC v Catizone, 127 AD3d 1151, 1152[2015]). The plaintiff further sustained its burden [*2]ofdemonstrating its prima facie entitlement to judgment as a matter of law by submittingthe mortgage, the note, and an affidavit of the loan servicer's assistant vice presidentestablishing the appellant's default in repaying the mortgage loan (see JPMorganChase Bank, N.A. v Weinberger, 142 AD3d at 645; Federal Natl. Mtge. Assn. vYakaputz II, Inc., 141 AD3d 506 [2016]; Deutsche Bank Natl. Trust Co. v Naughton, 137 AD3d1199, 1200 [2016]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d at1206-1207).
In opposition, the appellant failed to raise a triable issue of fact. As a mortgagorwhose loan is owned by a trust, the appellant does not have standing to challenge theplaintiff's possession or status as assignee of the note and mortgage based on purportednoncompliance with certain provisions of the relevant pooling and servicing agreement(see Bank of Am. N.A. vPatino, 128 AD3d 994, 995 [2015]; Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176, 1178[2015]; Bank of N.Y. Mellon vGales, 116 AD3d 723, 725 [2014]).
Accordingly, the Supreme Court properly, in effect, granted those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as assertedagainst the appellant and to appoint a referee to compute the amount due. Eng, P.J.,Balkin, Sgroi and Barros, JJ., concur.