| Deutsche Bank Natl. Trust Co. v Carlin |
| 2017 NY Slip Op 05421 [152 AD3d 491] |
| July 5, 2017 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee for theHolders of Morgan Stanley ABS Capital I Inc., Trust 2005-HE3, Mortgage Pass-ThroughCertificates, Series 2005-HE3, Respondent, v Andrew P. Carlin, Appellant, et al.,Defendants. |
Harvey Sorid, Uniondale, NY, for appellant.
Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Andrew P. Carlin appeals, as limited byhis brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), enteredApril 15, 2015, as granted that branch of the plaintiff's motion which was for summary judgmenton the complaint insofar as asserted against him and an order of reference.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment on the complaint insofar asasserted against the appellant and an order of reference is denied.
In 2005, the defendant Andrew P. Carlin (hereinafter the defendant) executed a note in favorof WMC Mortgage Corp. (hereinafter WMC) and a mortgage on his property in favor ofMortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for WMC.Pursuant to paragraph 18 of the mortgage, the defendant was entitled to a notice of default priorto the mortgagee demanding payment of the loan in full.
By written assignment dated May 9, 2012, MERS, as nominee for WMC, assigned themortgage to the plaintiff. In 2013, the plaintiff commenced this mortgage foreclosure action,alleging, among other things, that the defendant defaulted on the subject loan, that it hadcomplied with the RPAPL 1304 notice requirement, and that it was the owner and holder of thenote and mortgage. In his answer, the defendant denied the material allegations in the complaintand raised several affirmative defenses, including that the plaintiff failed to comply with theRPAPL 1304 notice requirement and the notice requirement in the mortgage, and that it lackedstanding. The plaintiff moved for summary judgment on the complaint and an order of reference.The Supreme Court granted the plaintiff's motion. The defendant appeals.
The plaintiff established, prima facie, its standing as the holder of the note by demonstratingthat the note was in its possession at the time it commenced the action, as evidenced by itsattachment of the note endorsed in blank to the summons and complaint at the time the actionwas commenced (see U.S. Bank N.A. vSaravanan, 146 AD3d 1010, 1011 [2017]; Deutsche Bank Natl. [*2]Trust Co. vLogan, 146 AD3d 861, 862 [2017]; JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 645[2016]). Contrary to the defendant's contention, "[t]here is simply no requirement that an entity inpossession of a negotiable instrument that has been endorsed in blank must establish how it cameinto possession of the instrument in order to be able to enforce it" (JPMorgan Chase Bank,N.A. v Weinberger, 142 AD3d at 645; see Deutsche Bank Natl. Trust Co. v Logan,146 AD3d at 863).
Nevertheless, the Supreme Court erred in granting the plaintiff's motion. In support of itsmotion, the plaintiff relied upon the affidavit of Meldin Rhodes, assistant secretary of NationstarMortgage, LLC, the current loan servicer. Rhodes averred that "servicing records" showed thatthe notice of default was mailed to the defendant on November 2, 2011, and the RPAPL 1304notice was mailed on December 28, 2012. Attached to Rhodes's affidavit were copies of thenotice of default and the RPAPL 1304 notice purportedly sent by Bank of America, N.A.(hereinafter BOA), the prior loan servicer, to the defendant.
The plaintiff failed to demonstrate the admissibility of the records relied upon by Rhodesunder the business records exception to the hearsay rule (see CPLR 4518). Rhodes, anemployee of the current loan servicer, did not aver that he was personally familiar with the recordkeeping practices and procedures of BOA, the prior loan servicer. Thus, Rhodes failed to lay aproper foundation for admission of records concerning service of the required notices, and hisassertions based on these records were inadmissible (see CitiMortgage, Inc. v Pappas, 147 AD3d 900, 901-902 [2017];U.S. Bank N.A. v Martin, 144AD3d 891, 892 [2016]; HSBCMtge. Servs., Inc. v Royal, 142 AD3d 952, 954 [2016]).
Inasmuch as the plaintiff failed to tender sufficient evidence to demonstrate the absence oftriable issues of fact as to its strict compliance with RPAPL 1304 and the notice requirement inthe mortgage, its motion should have been denied, without regard to the sufficiency of theopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; Flagstar Bank, FSB vAnderson, 129 AD3d 665, 666 [2015]).
In light of our determination, we need not reach the defendant's remaining contention.Mastro, J.P., Hall, Austin and Barros, JJ., concur.