| Wilmington Trust Co. v Walker |
| 2017 NY Slip Op 02597 [149 AD3d 409] |
| April 4, 2017 |
| Appellate Division, First Department |
[*1]
| Wilmington Trust Company, as Successor Trustee to Bank ofAmerica National Association, Respondent, v Audrey Walker et al., Appellants, et al.,Defendants. |
Law Office of Peter A. Hurwitz, PLLC, New City (Peter A. Hurwitz of counsel), forappellants.
Hogan Lovells US LLP, New York (Heather R. Gushue of counsel), for respondent.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered September 21,2015, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion forsummary judgment in this mortgage foreclosure action, unanimously affirmed, withoutcosts.
Defendants Audrey Walker and Dawn Walker are individuals who executed a mortgage andcorresponding promissory note in connection with a residential property located in BronxCounty. On appeal, they argue that plaintiff, the trustee of a Trust which holds their mortgage,does not have standing to bring this action.
Plaintiff has standing in this residential mortgage foreclosure action, as it provided primafacie evidence that it was the assignee of the subject mortgage, and the holder and assignee of theunderlying note at the time this action was commenced in September 2009 (OneWest Bank FSB v Carey, 104AD3d 444, 445 [1st Dept 2013];Bank of N.Y. Mellon Trust Co. NA v Sachar, 95 AD3d 695, 695-696 [1st Dept 2012]).Plaintiff submitted a pooling and servicing agreement which shows that both the mortgage andthe note were assigned to the Trust in June 2007.
In addition, plaintiff submitted the affidavit of the Vice President for Loan Documentationfor the Trust's Servicer, who attested that, on July 1, 2009, the original note was physicallydelivered to plaintiff's attorneys, and that they retained this note at the time of commencement.These statements are sufficient to show that plaintiff had physical possession of the note prior tocommencement of this action (see WellsFargo Bank, N.A. v Jones, 139 AD3d 520, 523-524 [1st Dept 2016]; U.S. Bank N.A. v Askew, 138 AD3d402, 402 [1st Dept 2016]; DeutscheBank Natl. Trust Co. v Idarecis, 133 AD3d 702, 703 [2d Dept 2015]).
The individual defendants' argument that plaintiff violated a rule promulgated by Chief JudgeLippman (Administrative Order of Chief Admin Judge of Cts AO/548/10, dated Oct. 20, 2010)by not submitting an attorney affirmation certifying that the residential [*2]mortgage documents were complete and accurate is unavailing.Administrative Order AO/548/10 was amended in March 2011 by Administrative OrderAO/431/11, which provided that, in pending cases, such affirmation could be submitted alongwith the proposed judgment of foreclosure. Here, as the proposed judgment of foreclosure hadnot been submitted to the trial court as of the date of the trial court's decision, there is noviolation. Concur—Friedman, J.P., Sweeny, Moskowitz, Gische and Kapnick, JJ.