| Wells Fargo Bank, N.A. v Talley |
| 2017 NY Slip Op 05996 [153 AD3d 583] |
| August 2, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Solely as Trustee for RMAC REMICTrust, Series 2009-9, Respondent, v Melvin P. Talley, Appellant, et al.,Defendants. |
David B. Gilbert, Middletown, NY, for appellant.
Knuckles Komosinski & Manfro, LLP, Elmsford, NY (Michel Lee of counsel), forrespondent.
Appeal from an order of the Supreme Court, Orange County (Nicholas DeRosa, J.), datedSeptember 4, 2015. The order, insofar as appealed from, granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted against thedefendant Melvin P. Talley and for an order of reference, and denied that branch of the defendantMelvin P. Talley's cross motion which was for summary judgment dismissing the complaintinsofar as asserted against him for lack of standing.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the plaintiff's motion which were for summary judgment on the complaintinsofar as asserted against the defendant Melvin P. Talley and for an order of reference, andsubstituting therefor a provision denying those branches of the motion; as so modified, the orderis affirmed insofar as appealed from, with costs to the defendant Melvin P. Talley.
In November 2006, Melvin P. Talley (hereinafter the defendant) borrowed the sum of$133,200 from Castle Point Mortgage (hereinafter Castle Point). The loan was evidenced by anote and secured by a mortgage in favor of Mortgage Electronic Registration Systems, Inc.(hereinafter MERS), acting solely as nominee for Castle Point, encumbering real property inMiddletown, New York. The defendant allegedly defaulted under the note by failing to make theinstallment payment due on July 1, 2009, and the monthly installment payments thereafter.Subsequently, in two written assignments, both dated March 31, 2010, the mortgage, "togetherwith [the] note or notes therein described or referred to," allegedly were assigned by MERS, asnominee for Castle Point, to ACT Properties, LLC (hereinafter ACT), and from ACT to theplaintiff.
In December 2012, the plaintiff commenced this action to foreclose the mortgage. Thedefendant joined issue by service of an answer in which he generally denied the allegations andasserted various affirmative defenses, including lack of standing. After a mandatory foreclosuresettlement conference, the plaintiff moved, inter alia, for summary judgment on the complaintinsofar as asserted against the defendant and for an order of reference. The defendant opposed themotion [*2]and cross-moved for summary judgment dismissingthe complaint insofar as asserted against him on the ground, among others, of lack of standing. Inan order dated September 4, 2015, the Supreme Court granted the motion and denied the crossmotion. The defendant appeals.
"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] [internal quotation marksomitted]; see Hudson City Sav. Bank vGenuth, 148 AD3d 687 [2017]). Where a plaintiff's standing to commence a foreclosureaction is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing tobe entitled to relief (see Deutsche BankTrust Co. Ams. v Garrison, 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]; U.S.Bank, N.A. v Noble, 144 AD3d 786 [2016]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754 [2009]).Either a written assignment of the underlying note or the physical delivery of the note issufficient to transfer the obligation, and the mortgage passes with the debt as an inseparableincident (see Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 725; U.S. Bank N.A. v Saravanan, 146AD3d 1010, 1011 [2017]; DeutscheBank Natl. Trust Co. v Logan, 146 AD3d 861, 862 [2017]).
Here, the plaintiff failed to meet its prima facie burden of establishing its standing (see Arch Bay Holdings, LLC vAlbanese, 146 AD3d 849 [2017]). In support of its motion, the plaintiff submitted theaffidavit of Selena Mitcherson, a vice-president of the plaintiff's loan servicer. Mitchersonaverred, based upon her review of the loan servicer's business records, that "prior [to]commencement and at all times thereafter," the plaintiff remained in possession of the originalpromissory note, which bears an indorsement payable to the plaintiff's order and was "deliveredto it, or its agent, on or about March 31, 2010." However, the plaintiff failed to demonstrate theadmissibility of the records relied upon by Mitcherson under the business records exception tothe hearsay rule (see CPLR 4518 [a]), since Mitcherson did not attest that she waspersonally familiar with the record-keeping practices and procedures of the plaintiff (see ArchBay Holdings, LLC v Albanese, 146 AD3d at 853; Aurora Loan Servs., LLC v Baritz, 144 AD3d 618, 620 [2016]; Deutsche Bank Natl. Trust Co. vBrewton, 142 AD3d 683, 685 [2016]; U.S. Bank N.A. v Handler, 140 AD3d 948, 949 [2016]; Aurora Loan Servs., LLC v Mercius,138 AD3d 650, 652 [2016]). The plaintiff also failed to establish standing based upon thepurported assignment of the note and mortgage from MERS to ACT, and then from ACT to theplaintiff. The record is devoid of proof of delivery or assignment of the note to MERS prior to itsexecution of the assignment to ACT (see Arch Bay Holdings, LLC v Albanese, 146AD3d at 853; Aurora Loan Servs., LLC v Mercius, 138 AD3d at 652; HSBC Bank USA, N.A. vRoumiantseva, 130 AD3d 983, 984 [2015]). Since the plaintiff failed to meet its primafacie burden, the Supreme Court should have denied those branches of its motion which were forsummary judgment on the complaint insofar as asserted against the defendant, and for an order ofreference, without regard to the sufficiency of the defendant's opposition papers (see Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]).
Nevertheless, the Supreme Court properly denied that branch of the defendant's cross motionwhich was for summary judgment dismissing the complaint insofar as asserted against him forlack of standing. "[T]he burden is on the moving defendant to establish, prima facie, theplaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing inorder for the motion to be denied. To defeat a defendant's motion, the plaintiff has no burden ofestablishing its standing as a matter of law" (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60[2015] [citations omitted]). Here, on his cross motion, the defendant failed to make a prima facieshowing that the plaintiff lacked standing (see Filan v Dellaria, 144 AD3d 967, 975 [2016]; Deutsche BankTrust Co. Ams. v Vitellas, 131 AD3d at 59-60). Rivera, J.P., Hall, Barros and BrathwaiteNelson, JJ., concur.