| Deutsche Bank Natl. Trust Co. v Romano |
| 2017 NY Slip Op 01336 [147 AD3d 1021] |
| February 22, 2017 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Respondent, v Frank A. Romano, Appellant, et al.,Defendants. |
Katerina N. Arvanitakis, Bayside, NY, for appellant.
Adam Leitman Bailey, P.C., New York, NY (Jeffrey R. Metz of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Frank A. Romano appeals (1) from anorder of the Supreme Court, Suffolk County (Spinner, J.), dated May 13, 2014, and (2), aslimited by his brief, from so much of an order of the same court, also dated May 13, 2014, asgranted those branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against him, to strike his answer, and to appoint a referee tocompute the amount due and owing under the mortgage.
Ordered that the appeal from the first order dated May 13, 2014, is dismissed, as that orderwas superseded by the second order dated May 13, 2014; and it is further,
Ordered that the second order dated May 13, 2014, is affirmed insofar as appealed from; andit is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendant Frank A.Romano.
"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 LaSalle Bank, N.A. v Zaks, 138 AD3d 788 [2016]; MLCFC 2007-9 Mixed Astoria, LLC v36-02 35th Ave. Dev., LLC, 116 AD3d 745, 746 [2014]). "Where, as here, the plaintiff'sstanding has been placed in issue by the defendant's answer, the plaintiff also must prove itsstanding as part of its prima facie showing" (LaSalle Bank, N.A. v Zaks, 138 AD3d at788; see Aurora Loan Servs., LLC vMercius, 138 AD3d 650, 651 [2016]). "In a foreclosure action, a plaintiff has standing ifit is either the holder or assignee of the underlying note at the time the action was commenced"(LaSalle Bank, N.A. v Zaks, 138 AD3d at 788; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362[2015]; U.S. Bank N.A. v Handler,140 AD3d 948, 949 [2016]). "A plaintiff may demonstrate that it is the holder or assignee ofthe underlying note 'by showing either a written assignment of the underlying note or the physicaldelivery of the note' " (Aurora Loan Servs., LLC v Mercius, 138 AD3d at 651,quoting U.S. Bank N.A. v Guy, 125AD3d 845, 846-847 [2015]).
In support of its motion for summary judgment, the plaintiff established its prima facieentitlement to judgment as a matter of law by producing the note, the mortgage, and proof of thedefendant Frank A. Romano's default (see Plaza Equities, LLC v Lamberti, 118 AD3d at689). Further, the plaintiff established that it had standing at the time of the commencement ofthe action by virtue of a written assignment of the mortgage and the underlying debt from theoriginal lender, Home Loan Investment Bank, F.S.B., formerly known as Ocean Bank, F.S.B, tothe plaintiff. "[T]he transfer of the mortgage without the debt is a nullity, and no interest isacquired by it, because a mortgage is merely security for a debt or other obligation and cannotexist independently of the debt or obligation" (Citibank, N.A. v Herman, 125 AD3d 587, 588 [2015] [citationsomitted]; see Bank of N.Y. vSilverberg, 86 AD3d 274, 280 [2011]; Kluge v Fugazy, 145 AD2d 537, 538[1988]). "[T]he foreclosure of a mortgage cannot be pursued by one who has no demonstratedright to the debt" (Bank of N.Y. v Silverberg, 86 AD3d at 280). Here, however, inaddition to assigning the mortgage, the assignment explicitly transferred "all moneys now owingor that may hereafter become due or owing in respect thereof, and the full benefit of all thepowers and of all the covenants and provisos therein contained," which language was "broadenough to transfer the interest in the mortgage as well as the underlying debt" (Chase Home Fin., LLC v Miciotta, 101AD3d 1307, 1307-1308 [2012]; seeU.S. Bank N.A. v Akande, 136 AD3d 887, 889 [2016]). "[N]o special form or languageis necessary to effect an assignment as long as the language shows the intention of the owner of aright to transfer it" (Bank of N.Y. v Silverberg, 86 AD3d at 280-281 [internal quotationmarks omitted]; see U.S. Bank N.A. v Akande, 136 AD3d at 889). Indeed, "in theabsence of statute or a contract provision to the contrary, there are no prescribed formalities thatmust be observed to make an effective assignment. It is sufficient if the assignor has, in somefashion, manifested an intention to make a present transfer of his rights to the assignee"(9-47 Corbin on Contracts § 47.7 [emphasis added]).
Additionally, under the circumstances of this case, the typographical error in the assignmentwith respect to the name of the plaintiff's trust beneficiary did not vitiate the plaintiff's standingto enforce the note and mortgage (seeBarnaba Realty Group, LLC v Solomon, 121 AD3d 730, 731 [2014]; cf. Wells Fargo, N.A. v Savinetti, 116AD3d 765, 765-766 [2014]).
In opposition, Romano failed to raise a triable issue of fact (see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motionwhich were for summary judgment against Romano, to strike his answer, and to appoint a refereeto compute the amount due and owing under the mortgage. Chambers, J.P., Hall, Miller andConnolly, JJ., concur.