| Bank of Am., N.A. v Martinez |
| 2017 NY Slip Op 06422 [153 AD3d 1219] |
| September 13, 2017 |
| Appellate Division, Second Department |
[*1]
| Bank of America, N.A., Successor by Merger to BAC HomeLoans Servicing, L.P., Formerly Known as Countrywide Home Loans Servicing, L.P.,Respondent, v Henry Martinez et al., Appellants, et al.,Defendants. |
Legal Aid Society of Rockland County, Inc., New City, NY (Derek Tarson of counsel), forappellants.
Ballard Spahr LLP, New York, NY (Justin Angelo and Adam Hartley of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Henry Martinez and Yanira Riveraappeal, as limited by their brief, from so much of an order of the Supreme Court, RocklandCounty (Berliner, J.), dated October 29, 2014, as granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against them, to striketheir answer, and for an order of reference.
Ordered that the order is affirmed insofar as appealed from, with costs.
In January 2007, the defendants Henry Martinez and Yanira Rivera (hereinafter together thedefendants) borrowed the sum of $228,000 from Approved Funding Corp. (hereinafter AFC).The loan was evidenced by a note and secured by a mortgage in favor of Mortgage ElectronicRegistration Systems, Inc. (hereinafter MERS), acting solely as nominee for AFC. The mortgageencumbered real property in Spring Valley. Thereafter, the mortgage was assigned to theplaintiff. In July 2012, the plaintiff commenced this action to foreclose the mortgage, allegingthat the defendants defaulted on the loan by failing to make the payment due on May 1, 2010.The defendants filed an answer in which they generally denied the allegations in the complaintand asserted, among other affirmative defenses, that the plaintiff lacked standing to commencethe action. In February 2014, after settlement conferences pursuant to CPLR 3408 failed to resultin a loan modification, the plaintiff moved, inter alia, for summary judgment on the complaintinsofar as asserted against the defendants, to strike the defendants' answer, and for an order ofreference. The defendants opposed the motion. In an order dated October 29, 2014, the SupremeCourt granted the motion. The defendants appeal, and we affirm the order 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" (Plaza Equities,LLC v Lamberti, 118 AD3d 688, 689 [2014]). "Where, as here, standing is put into issueby a defendant, the plaintiff must prove its standing in order to be entitled to relief" (Aurora Loan Servs., LLC v Taylor, 114AD3d 627, 628 [2014] [internal quotation marks omitted], affd 25 NY3d 355[2015]). A plaintiff in a mortgage foreclosure action has standing where it is [*2]the holder or assignee of the underlying note at the time the actionis commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361; U.S. Bank N.A. v Handler, 140 AD3d948, 949 [2016]). "Either a written assignment of the underlying note or the physicaldelivery of the note prior to the commencement of the foreclosure action is sufficient to transferthe obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]).
Here, the plaintiff proffered an affidavit from one of its officers, who averred that theplaintiff received the original note on or about February 10, 2007, and the original recordedmortgage on or about June 13, 2007. This evidence, together with a copy of the note endorsed inblank, which was attached to the plaintiff's motion for summary judgment, was sufficient toestablish, prima facie, the plaintiff's standing (see Aurora Loan Servs., LLC v Taylor, 25NY3d at 361). In opposition, the defendants failed to raise a triable issue of fact. Contrary to theirassertion, the copy of the note submitted by them in opposition to the motion did not contain anendorsement which conflicted with the copy of the note submitted by the plaintiff.
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 defendants, tostrike the defendants' answer, and for an order of reference. Leventhal, J.P., Cohen, LaSalle andBarros, JJ., concur.