| Wells Fargo Bank, N.A. v Archibald |
| 2017 NY Slip Op 03800 [150 AD3d 937] |
| 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.), datedJune 29, 2015, as granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against him and for an order of reference.
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 served an answer in which they asserted asan affirmative defense that the plaintiff lacked standing to commence the action. The defendantsthen moved pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against them,arguing that the plaintiff lacked standing. In an order dated March 26, 2015, the Supreme Courtdenied the motion, and we are affirming that order insofar as appealed from (see Wells FargoBank, N.A. v Archibald, 150 AD3d 935 [2d Dept 2017] [decided herewith]). In May 2015, the plaintiff moved, inter alia, forsummary judgment on the complaint and for an order of reference. The defendants opposed themotion, arguing again that the plaintiff lacked standing. In an order dated June 29, 2015, thecourt granted the plaintiff's motion. The defendant appeals from so much of the order as grantedthose branches of the plaintiff's motion which were for summary judgment on the complaintinsofar as asserted against him and for an order of reference. We affirm insofar as appealedfrom.
"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" (Deutsche BankNatl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015]; see HSBC Bank, USA v Hagerman,130 AD3d 683, 683-684 [2015]). However, where, as here, a plaintiff's standing tocommence a foreclosure action is placed in issue by a defendant, it is incumbent upon theplaintiff to prove its standing as part of its prima facie showing (see Deutsche Bank Natl. Trust Co. v [*2]Brewton, 142 AD3d 683, 684 [2016]; Deutsche Bank Natl. Trust Co. vCunningham, 142 AD3d 634, 635 [2016]). A plaintiff establishes its standing in amortgage foreclosure action by demonstrating that it was either the holder or assignee of theunderlying note at the time the action was commenced (see U.S. Bank, N.A. v Noble, 144 AD3d 786, 787 [2016]; U.S. Bank, N.A. v Collymore, 68AD3d 752, 753 [2009]).
Here, in support of its motion, the plaintiff submitted the note, the mortgage, and an affidavitof April Martin, a "Document Execution Specialist" for the loan servicer, in which Martin statedthat the subject loan was in default.
Moreover, the plaintiff established, prima facie, that it had standing to commence the action.Contrary to the defendant's contention that the plaintiff lacked standing to commence this actionbecause the written assignment only assigned the mortgage, the plaintiff demonstrated that it hadstanding based on the written assignment, which expressly stated that, in addition to themortgage, Option One assigned "all right, title and interest in [the] note" (see U.S. Bank N.A. v Akande, 136AD3d 887, 890 [2016]; EmigrantBank v Larizza, 129 AD3d 904, 904-905 [2015]; Wells Fargo Bank, N.A. v Ali, 122 AD3d 726, 727 [2014]).
In opposition, the defendant failed to raise a triable issue of fact. Accordingly, the SupremeCourt properly granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the defendant and for an order of reference.Balkin, J.P., Cohen, Miller and Brathwaite Nelson, JJ., concur.