| Wells Fargo Bank, N.A. v Thomas |
| 2017 NY Slip Op 04318 [150 AD3d 1312] |
| May 31, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., as Trustee for WAMU Mortgage PassThrough Certificates Series 2005-PR2 Trust, Respondent, v Pamela J. Thomas, AlsoKnown as Pamela Thomas, et al., Appellants, et al., Defendants. |
Stephen C. Silverberg, PLLC, Uniondale, NY, for appellants.
Parker Ibrahim & Berg LLC, New York, NY (Anthony W. Vaughn, Jr., and Kristin M.Mykulak of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Pamela J. Thomas, also known asPamela Thomas, and Carl Thomas appeal (1) from an order of the Supreme Court, NassauCounty (Adams, J.), entered August 25, 2014, and (2), as limited by their brief, from so much ofan order of the same court entered August 28, 2014, as granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted against them andfor an order of reference.
Ordered that the appeal from the order entered August 25, 2014, is dismissed, as it wassuperseded by the order entered August 28, 2014; and it is further,
Ordered that the order entered August 28, 2014, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action against the appellants, among others, to foreclose amortgage. The plaintiff moved, inter alia, for summary judgment on the complaint insofar asasserted against the appellants and for an order of reference. The Supreme Court granted theplaintiff's motion.
To establish prima facie entitlement to judgment as a matter of law in an action to foreclose amortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Hudson City Sav. Bank v Genuth,148 AD3d 687 [2017]; DeutscheBank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015]). However, where, as here,a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, it isincumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. vGarrison, 147 AD3d 725 [2017]; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 973-974 [2014]).A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, whenthe action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor,25 NY3d 355, 361-362 [2015]; Deutsche [*2]Bank TrustCo. Ams. v Garrison, 147 AD3d at 725). Either a written assignment of the underlying noteor the physical delivery of the note is sufficient to transfer the obligation, and the mortgagepasses with the debt as an inseparable incident (see Deutsche Bank Trust Co. Ams. vGarrison, 147 AD3d at 726; U.S.Bank N.A. v Saravanan, 146 AD3d 1010, 1011 [2017]; Deutsche Bank Natl. Trust Co. vLogan, 146 AD3d 861, 862 [2017]).
Here, the plaintiff established, prima facie, that it had standing by demonstrating that it hadphysical possession of the note at the time it commenced the action, as evidenced by itsattachment of the note to the summons and complaint (see JP Morgan Chase Bank, N.A. v Venture, 148 AD3d 1269[2017]; Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d at 862; Nationstar Mtge., LLC v Weisblum,143 AD3d 866, 868 [2016]). Contrary to the appellants' contention, " '[t]here issimply no requirement that an entity in possession of a negotiable instrument that has beenendorsed in blank must establish how it came into possession of the instrument in order to beable to enforce it' " (Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d at 863,quoting JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d 643, 645 [2016]). "Further, where the note is affixed to thecomplaint, 'it is unnecessary to give factual details of the delivery in order to establish thatpossession was obtained prior to a particular date' " (Deutsche Bank Natl. Trust Co. vLogan, 146 AD3d at 863, quoting JPMorgan Chase Bank, N.A. v Weinberger, 142AD3d at 645; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 362).
Additionally, the plaintiff established its prima facie entitlement to judgment as a matter oflaw by submitting the mortgage, the note, and the affidavit of Victoria J. Greenwood, a vicepresident of JPMorgan Chase Bank, NA, the plaintiff's loan servicer, attesting to the default inpayment (see Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d at 861). The appellants'contention that Greenwood's affidavit constituted inadmissible hearsay because she did not havepersonal knowledge of the plaintiff's record-keeping practices and procedures is without merit(see CPLR 4518; Citigroup vKopelowitz, 147 AD3d 1014 [2017]; Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898, 900[2016]).
In opposition, the appellants failed to raise a triable issue of fact rebutting the plaintiff'sshowing or as to the merit of any of their affirmative defenses (see Wells Fargo Bank Minn., N.A. vPerez, 41 AD3d 590 [2007]).
The appellants' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the appellantsand for an order of reference. Eng, P.J., Rivera, Balkin and Barros, JJ., concur.