| Wells Fargo Bank, NA v Fortmeyer |
| 2017 NY Slip Op 07482 [154 AD3d 998] |
| October 25, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, NA, as Trustee for WaMu MortgagePass-Through Certificates Series 2004-PR2 Trust, Respondent, v Kevin Fortmeyer et al.,Appellants, et al., Defendants. |
Joseph Falbo, Jr., Mineola, NY, for appellants.
Parker Ibrahim & Berg LLC, New York, NY (Scott W. Parker and Mitchell S. Kurtz ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Kevin Fortmeyer and MichelleFortmeyer appeal (1) from a decision of the Supreme Court, Nassau County (Adams, J.), datedMay 14, 2015, and (2), as limited by their brief, from so much of an order of the same courtentered June 2, 2015, as, upon the decision, 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 appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In 2004, the defendants Kevin Fortmeyer and Michelle Fortmeyer (hereinafter together thedefendants) executed a note, and a mortgage on real property, in favor of Washington MutualBank, FA (hereinafter WaMu). In 2008, after WaMu had entered receivership by the FederalDeposit Insurance Corporation (hereinafter the FDIC), JP Morgan Chase Bank, N.A. (hereinafterJP Morgan), and the FDIC entered into a purchase and assumption agreement, pursuant to whichJP Morgan acquired all of WaMu's loans and loan commitments (see JP Morgan Chase Bank, N.A. vSchott, 130 AD3d 875 [2015]; JP Morgan Chase Bank, N.A. v Russo, 121 AD3d 1048 [2014]; JP Morgan Chase Bank N.A. vMiodownik, 91 AD3d 546, 547 [2012]). JP Morgan thereafter assigned the instant noteand mortgage to the plaintiff, by written assignment dated June 30, 2009.
On May 3, 2013, the plaintiff commenced this action to foreclose the mortgage. The plaintiffmoved, inter alia, for summary judgment on the complaint insofar as asserted against the [*2]defendants, to strike the defendants' answer, and for an order ofreference. The Supreme Court granted those branches of the motion, and the defendantsappeal.
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 Wells Fargo Bank, N.A. v Thomas,150 AD3d 1312 [2017]; HudsonCity Sav. Bank v Genuth, 148 AD3d 687 [2017]). Moreover, where, as here, a plaintiff'sstanding to commence a foreclosure action has been placed in issue by a defendant, it isincumbent upon the plaintiff to prove its standing to be entitled to relief (see Wells Fargo Bank, N.A. v Thomas,150 AD3d 1312 [2017]; DeutscheBank Trust Co. Ams. v Garrison, 147 AD3d 725 [2017]). A plaintiff establishes itsstanding in a mortgage foreclosure action by demonstrating that it was the holder or assignee ofthe underlying note at the time the action was commenced (see Hudson City Sav. Bank v Genuth, 148 AD3d 687 [2017]; Deutsche Bank Trust Co. Ams. vGarrison, 147 AD3d 725 [2017]).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of lawthrough production of the mortgage, the note, and evidence of default. Additionally, the plaintiffestablished, prima facie, that it had standing as the assignee of the note at the time the action wascommenced. In opposition, the defendants failed to raise a triable issue of fact. Accordingly, theSupreme Court properly granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the defendants, to strike the defendants'answer, and for an order of reference. Mastro, J.P., Hall, Austin and Sgroi, JJ., concur.