| Silvergate Bank v Calkula Props., Inc. |
| 2017 NY Slip Op 04309 [150 AD3d 1295] |
| May 31, 2017 |
| Appellate Division, Second Department |
[*1]
| Silvergate Bank, Respondent, v Calkula Properties,Inc., Appellant, et al., Defendants. |
Deutsch & Schneider, LLP, Glendale, NY (William J. Fielding of counsel), forappellant.
Hogan Lovells US, LLP, New York, NY (Leah Rabinowitz Lenz and Chava Brandriss ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Calkula Properties, Inc., appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.),dated July 9, 2014, as granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against it, and for an order of reference.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2003, the defendant Calkula Properties, Inc. (hereinafter the defendant), executed a note,secured by a mortgage on real property owned by it, in which it promised to repay a loan itreceived from GFI Mortgage Bankers, Inc. The note was endorsed to the plaintiff by a "NoteEndorsement" dated December 12, 2008. The plaintiff commenced this action to foreclose themortgage in June 2013. In its answer, the defendant raised the defense of lack of standing toforeclose.
To establish prima facie entitlement to judgment as a matter of law in a residential mortgageforeclosure action, a plaintiff must produce the mortgage, the unpaid note, and evidence ofdefault (see Deutsche Bank Trust Co.Ams. v Garrison, 147 AD3d 725, 726 [2017]; JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903, 904 [2015];Deutsche Bank Natl. Trust Co. vAbdan, 131 AD3d 1001, 1002 [2015]; HSBC Bank, USA v Hagerman, 130 AD3d 683, 683-684 [2015]).Where, as here, a plaintiff's standing has been placed in issue by the defendant's answer, theplaintiff also must prove its standing as part of its prima facie showing (see Security Lending, Ltd. v New RealtyCorp., 142 AD3d 986, 987 [2016]; JPMorgan Chase Bank, N.A. v Mantle, 134AD3d at 904; Loancare v Firshing,130 AD3d 787, 789 [2015]; HSBCBank USA, N.A. v Baptiste, 128 AD3d 773, 774 [2015]). A plaintiff establishes itsstanding in a mortgage foreclosure action by demonstrating that, when the action wascommenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor,25 NY3d 355, 361-362 [2015]; Security Lending, Ltd. v New Realty Corp., 142AD3d at 987; JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d at 904; Loancare vFirshing, 130 AD3d at 789; Emigrant Bank v Larizza, 129 AD3d 904, 905 [2015]). "Either awritten assignment of the underlying note or the physical delivery of the note prior to thecommencement of the foreclosure action is sufficient to transfer the obligation, and the mortgagepasses with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d[*2]752, 754 [2009]; see Aurora Loan Servs., LLC vTaylor, 25 NY3d at 361-362; DyerTrust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828 [2016]).
Here, the plaintiff established, prima facie, its standing as the holder of the note bydemonstrating, through the affidavit of its vice president, Kim Barr, that the original note wasphysically delivered to the plaintiff in or about December 2008, and was still in its possession atthe time it commenced this action in June 2013. Contrary to the defendant's contentions, theplaintiff's submissions, including a copy of the "Note Endorsement" dated December 12, 2008,were sufficient to make a prima facie showing of standing (see Aurora Loan Servs., LLC vTaylor, 25 NY3d at 361-362; Security Lending, Ltd. v New Realty Corp., 142 AD3dat 987; Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d at 828). The plaintifffurther sustained its burden of demonstrating its prima facie entitlement to judgment as a matterof law by submitting copies of the mortgage, the note, and an affidavit of the loan servicer's vicepresident establishing the defendant's default in repaying the mortgage loan (see DeutscheBank Trust Co. Ams. v Garrison, 147 AD3d at 726; JPMorgan Chase Bank, N.A. vMantle, 134 AD3d at 904; Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d at1002; HSBC Bank, USA v Hagerman, 130 AD3d at 683-684).
In opposition, the defendant failed to raise a triable issue of fact. Contrary to the defendant'scontention, where, as here, the evidence establishes that the plaintiff had physical possession ofthe note at the time of the commencement of the action, validity of the various assignments of themortgage is irrelevant to the issue of standing (see Aurora Loan Servs., LLC v Taylor, 25NY3d at 362; New York CommunityBank v McClendon, 138 AD3d 805, 807 [2016]; Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099, 1100[2015]).
The defendant's remaining contentions are without merit. Leventhal, J.P., Hinds-Radix,LaSalle and Brathwaite Nelson, JJ., concur.