| Wells Fargo Bank, N.A. v Archibald |
| 2017 NY Slip Op 03799 [150 AD3d 935] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., as Trustee for the MLMI TrustSeries-2005-HE3, Respondent, v Emanuel Archibald, Appellant, et al.,Defendants. |
Emanuel Archibald, Highland Mills, NY, appellant pro se.
Ballard Spahr LLP, New York, NY (Justin Angelo and Adam Hartley of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Emanuel Archibald appeals, as limited byhis brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), datedMarch 26, 2015, as denied that branch of his motion, made jointly with the defendant YvonneMoody, which was pursuant to CPLR 3211 (a) to dismiss the complaint insofar as assertedagainst him.
Ordered that the order is affirmed insofar as appealed from, with costs.
In June 2005, Emanuel Archibald (hereinafter the defendant) and Yvonne Moody(hereinafter together the defendants) executed a note in the sum of $503,400 in favor of OptionOne Mortgage Corporation (hereinafter Option One), which was secured by a mortgage onresidential property located in Highland Mills. Thereafter, Option One assigned the mortgage tothe plaintiff by written assignment dated June 29, 2005. In August 2008, the plaintiff commencedthis action to foreclose the mortgage. The defendants moved pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against them, arguing that the plaintiff lacked standingto commence the action. In an order dated March 26, 2015, the Supreme Court denied themotion. The defendant appeals from so much of the order as denied that branch of the motionwhich was to dismiss the complaint insofar as asserted against him. We affirm insofar asappealed from.
A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that itwas either the holder or assignee of the underlying note at the time the action was commenced(see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 360-362 [2015]; Kondaur Capital Corp. v McCary, 115 AD3d 649, 650 [2014])."The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showingeither a written assignment of the underlying note or the physical delivery of the note" (U.S. Bank N.A. v Guy, 125 AD3d845, 846-847 [2015]; Kondaur Capital Corp. v McCary, 115 AD3d at 650). As ageneral matter, once a promissory note is tendered to and accepted by an assignee, the mortgagepasses as an incident to the note (seeCitibank, N.A. v Herman, 125 AD3d 587, 588 [2015]; Deutsche Bank Natl. Trust Co. vSpanos, 102 AD3d 909, 911 [2013]).
On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack ofstanding, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack[*2]of standing as a matter of law (see U.S. Bank, N.A. v Noble, 144AD3d 786, 787 [2016]; U.S. Bank N.A. v Guy, 125 AD3d at 847; HSBC Mtge. Corp. [USA] vMacPherson, 89 AD3d 1061, 1062 [2011]).
Here, the defendant made no showing that the plaintiff was not the holder of the note at thetime the action was commenced. The defendant also failed to demonstrate that the plaintifflacked standing based on the written assignment of the mortgage to the plaintiff, since theassignment expressly stated that, in addition to the mortgage, Option One assigned "all right, titleand interest in [the] note" (see U.S.Bank N.A. v Akande, 136 AD3d 887, 890 [2016]; Emigrant Bank v Larizza, 129 AD3d 904, 904-905 [2015]; Wells Fargo Bank, N.A. v Ali, 122AD3d 726, 727 [2014]). Furthermore, as a mortgagor whose loan was owned by a trust, thedefendant lacked standing to assert his claim that the delivery of the note from Option One to theplaintiff violated the pooling and servicing agreement for the trust (see U.S. Bank N.A. v Saravanan, 146AD3d 1010 [2017]; Wells FargoBank, N.A. v Erobobo, 127 AD3d 1176 [2015]; Bank of N.Y. Mellon v Gales, 116 AD3d 723, 725 [2014]).
Accordingly, the Supreme Court properly denied that branch of the defendants' motion whichwas to dismiss the complaint insofar as asserted against the defendant. Balkin, J.P., Cohen,Miller and Brathwaite Nelson, JJ., concur.