| Chase Home Fin., LLC v Howland |
| 2017 NY Slip Op 03108 [149 AD3d 1405] |
| April 20, 2017 |
| Appellate Division, Third Department |
[*1]
| Chase Home Finance, LLC, Respondent, v Anthony M.Howland, Also Known as Anthony Howland, et al., Appellants, et al.,Defendants. |
Law Offices of Christiaan van Niekerk, PLLC, Schenectady (Sandra Poland Demars ofcounsel), for appellants.
Fein, Such & Crane, LLP, Rochester (John A. Cirando of D.J. & J.A. Cirando,Syracuse, of counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (J. Sise, J.), entered January 4, 2016 inMontgomery County, which granted plaintiff's motion for, among other things, summaryjudgment.
In April 2010, plaintiff commenced this mortgage foreclosure action alleging that defendantsAnthony M. Howland and Donna M. Falconio (hereinafter collectively referred to as defendants)defaulted on a note secured by a mortgage on real property located in Montgomery County.Defendants timely answered and asserted three affirmative defenses, none of which raised theissue of plaintiff's standing to commence this action. In October 2013, JP Morgan Chase Bank,National Association, as successor by merger to plaintiff, assigned the mortgage to M&TBank, as successor by merger to M&T Mortgage Corporation. Only then did defendantsmove for dismissal of the complaint, arguing, among other things, that plaintiff lacked standing.Supreme Court denied the motion in a September 2014 order, finding that defendants had waivedthis affirmative defense. Plaintiff later moved for summary judgment and to substitute M&TBank as the named plaintiff in this action. In January 2016, Supreme Court granted plaintiff'smotion in its entirety. Defendants now appeal.
Supreme Court correctly found that defendants waived their right to contest plaintiff's [*2]standing inasmuch as "the failure to raise lack of standing as anaffirmative defense in an answer or in a pre-answer motion to dismiss constitutes a waiver ofsuch affirmative defense" (HSBC Mtge.Corp. [USA] v Johnston, 145 AD3d 1240, 1241 [2016]; see CPLR 3211 [a] [3];[e]; HSBC Bank USA, N.A. v Sage,143 AD3d 1214, 1215 [2016]; Nationstar Mtge., LLC v Alling, 141 AD3d 916, 917 [2016]).Further, contrary to defendants' assertion, "the standing issue does not implicate the jurisdictionof Supreme Court such as to render it nonwaivable" (Kruger v State Farm Mut. Auto. Ins. Co., 79 AD3d 1519, 1520[2010]; see HSBC Bank USA, N.A. vAshley, 104 AD3d 975, 976 [2013], lv dismissed 21 NY3d 956 [2013]; see also CNB Realty v Stone Cast, Inc.,127 AD3d 1438, 1439 [2015]).
Nor did Supreme Court err in finding that plaintiff met its initial summary judgment burden.To establish its entitlement to summary judgment, plaintiff produced "the mortgage and unpaidnote, along with evidence of [defendants'] default in payments" (Citibank, NA v Abrams, 144 AD3d1212, 1214 [2016]; see Nationstar Mtge., LLC v Alling, 141 AD3d at 917-918; see generally Wells Fargo Bank, N.A. vWalker, 141 AD3d 986, 987 [2016]). "Such proof was sufficient to demonstrate[plaintiff's] prima facie entitlement to judgment as a matter of law, thereby shifting the burden todefendant[s] to raise a question of fact as to a bona fide defense to foreclosure" (NationstarMtge., LLC v Alling, 141 AD3d at 918 [citations omitted]). In opposition, defendantsproffered an affirmation by their attorney challenging plaintiff's standing. They also produced thedocuments that they had already submitted with their unsuccessful motion for dismissal of thecomplaint based upon lack of standing. In view of this, we agree with Supreme Court thatdefendants failed to raise a question of fact as to a bona fide defense to foreclosure(id.).
Finally, we reject defendants' contention that Supreme Court abused its discretion in grantingplaintiff's request to substitute M&T Bank as the named plaintiff in this action (seeCPLR 1018; Schwyter v DeNoble,142 AD3d 699, 699 [2016]). Defendants' remaining contentions, to the extent not expresslyaddressed herein, have been considered and determined to be lacking in merit.
Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the order is affirmed, withcosts.