| US Bank, N.A. v Zwisler |
| 2017 NY Slip Op 00682 [147 AD3d 804] |
| February 1, 2017 |
| Appellate Division, Second Department |
[*1]
| US Bank, N.A., as Trustee for GSAMP Trust 2005-AHL2Mortgage Pass-Through Certificates Series 2005-AHL2, Respondent, v Lori Zwisler,Appellant, et al., Defendants. |
Lori Zwisler, Hicksville, NY, appellant pro se.
Houser & Allison, APC, New York, NY (Jacqueline Muratore of counsel), and Dorf& Nelson, LLP, Rye, NY, for respondent (one brief filed).
In an action to foreclose a mortgage, the defendant Lori Zwisler appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), enteredSeptember 5, 2014, as granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against her and for an order of reference.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the plaintiff's motion which were for summary judgment on the complaint insofar asasserted against the appellant and for an order of reference are denied.
On September 26, 2005, the defendant Lori Zwisler (hereinafter the defendant) executed anote in the amount of $372,500 in favor of nonparty Home Funds Direct. The note was securedby a mortgage on residential property in Hicksville. On May 16, 2012, the plaintiff commencedthis foreclosure action, alleging that the defendant defaulted under the terms of the note by failingto make the payments due on and after September 1, 2008. In her answer, the defendant assertedthe defense of lack of standing.
Subsequently, the plaintiff moved, inter alia, for summary judgment on the complaint insofaras asserted against the defendant and for an order of reference. The defendant opposed on theground, among other things, that the plaintiff lacked standing. The Supreme Court granted theplaintiff's motion.
"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its prima facie case through the production of the mortgage, the unpaid note, andevidence of default" (Plaza Equities,LLC v Lamberti, 118 AD3d 688, 689 [2014]; see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684[2016]). "Where, as here, standing is put into issue by a defendant, the plaintiff must prove itsstanding in order to be entitled to relief" (Aurora Loan Servs., LLC v Taylor, 114 AD3d 627, 628 [2014], affd 25 NY3d 355 [2015] [internalquotation marks omitted]). A plaintiff in a mortgage foreclosure action has standing where it isthe holder of the underlying note at the time the action is commenced (see Aurora LoanServs., LLC v Taylor, 25 NY3d 355, 361 [2015]; U.S. Bank N.A. v Handler, 140 AD3d 948, 949 [2016]). "Either awritten assignment of the underlying note or the physical delivery of the note prior to thecommencement of the foreclosure action is sufficient [*2]totransfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]).
Here, the plaintiff failed to demonstrate, prima facie, that it was a holder or assignee of thenote prior to commencement of the action (see Deutsche Bank Natl. Trust Co. v Brewton,142 AD3d at 684). A "promissory note [is] a negotiable instrument within the meaning of theUniform Commercial Code" (MortgageElec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674 [2007]; see UCC3-104 [2] [d]; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d at 684). A "holder"is "the person in possession of a negotiable instrument that is payable either to bearer or to anidentified person that is the person in possession" (UCC 1-201 [b] [21]; see UCC 3-301["The holder of an instrument whether or not he is the owner may . . . enforcepayment in his own name"]). Where an instrument is indorsed in blank, it may be negotiated bydelivery (see UCC 3-202 [1]; 3-204 [2]).
The plaintiff submitted the note with an allonge containing an endorsement, but theendorsement was not made in blank or payable to the plaintiff. Therefore, the plaintiff failed todemonstrate, prima facie, that it was a holder of the note within the meaning of UCC 1-201 (b)(21). Furthermore, the plaintiff failed to demonstrate, prima facie, its status as an assignee of thenote. Accordingly, the Supreme Court should have denied those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendant andfor an order of reference, regardless of the sufficiency of the defendant's opposing papers (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Austin, J.P., Cohen, Maltese and Duffy, JJ.,concur.
Motion by the plaintiff, inter alia, to dismissan appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered September 5,2014, on the ground that the exhibits included in the record on appeal are set forth in theincorrect order. By decision and order on motion dated December 14, 2015, that branch of themotion was held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that the branch of the motion which is to dismiss the appeal on the ground that theexhibits included in the record on appeal are set forth in the incorrect order is denied. Austin,J.P., Cohen, Maltese and Duffy, JJ., concur.