| US Bank N.A. v Cohen |
| 2017 NY Slip Op 08876 [156 AD3d 844] |
| December 20, 2017 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, as Trustee for Credit SuisseFirst Boston Mortgage Securities Corp., CSMC Mortgage-Backed Pass-Through Certificates,Series 2006-7, Respondent, v Sharona Cohen et al., Appellants, et al.,Defendants. |
Patacca & Associates, P.C., Williston Park, NY (Kevin McDermott of counsel), forappellants.
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Heather R.Gushue of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Sharona Cohen and Doron Cohenappeal, as limited by their brief, from (1) so much of an order of the Supreme Court, NassauCounty (Adams, J.), entered August 18, 2015, as granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against them and for anorder of reference, and denied their cross motion pursuant to CPLR 3211 (a) (3) to dismiss thecomplaint insofar as asserted against them for lack of standing or, in the alternative, for a hearingto determine whether the plaintiff failed to negotiate in good faith as required by CPLR 3408 (f),and (2) so much of an order of the same court entered August 20, 2015, as granted those branchesof the plaintiff's motion which were for summary judgment on the complaint insofar as assertedagainst them and for an order of reference, and referred the matter to a referee to ascertain andcompute the amount due to the plaintiff.
Ordered that the appeal from so much of the order entered August 18, 2015, as granted thosebranches of the plaintiff's motion which were for summary judgment on the complaint insofar asasserted against the defendants Sharona Cohen and Doron Cohen and for an order of reference isdismissed, as that portion of the order was superseded by the order entered August 20, 2015; andit is further,
Ordered that the order entered August 18, 2015, is affirmed insofar as reviewed; and it isfurther,
Ordered that the order entered August 20, 2015, 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 to foreclose a consolidated mortgage. The appellantsinterposed an answer in which they asserted as an affirmative defense that the plaintiff lackedstanding to commence the action. Following mandatory settlement conferences pursuant to [*2]CPLR 3408, the plaintiff moved, inter alia, for summary judgmenton the complaint insofar as asserted against the appellants and for an order of reference. Theappellants cross-moved pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar asasserted against them for lack of standing or, in the alternative, for a hearing to determinewhether the plaintiff failed to negotiate in good faith as required by CPLR 3408 (f). The SupremeCourt granted the plaintiff's motion and denied the appellants' cross motion.
" 'Generally, in moving for summary judgment in an action to foreclose a mortgage,a plaintiff establishes its prima facie case through the production of the mortgage, the unpaidnote, and evidence of default' " (Wells Fargo Bank, N.A. v Archibald, 150 AD3d 937, 938 [2017],quoting Deutsche Bank Natl. Trust Co. vAbdan, 131 AD3d 1001, 1002 [2015]). However, where, as here, a plaintiff's standing tocommence a foreclosure action is placed in issue by a defendant, the plaintiff must prove itsstanding as part of its prima facie showing (see Wells Fargo Bank, N.A. v Archibald, 150AD3d at 938). "A plaintiff has standing to commence a foreclosure action where it is the holderor assignee of the underlying note, either by physical delivery or execution of a writtenassignment prior to the commencement of the action with the filing of the complaint" (Nationstar Mtge., LLC v Weisblum,143 AD3d 866, 868 [2016]; seeAurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]). Once a note istransferred, the mortgage passes as an incident to the note (see Aurora Loan Servs., LLC vTaylor, 25 NY3d at 361; Bank ofN.Y. v Silverberg, 86 AD3d 274, 280 [2011]).
Here, the plaintiff established, prima facie, its standing as the holder of the consolidated noteby demonstrating that the consolidated note was in its possession at the time it commenced theaction, as evidenced by its attachment of the consolidated note endorsed in blank to the summonsand complaint at the time the action was commenced (see Deutsche Bank Natl. Trust Co. v Carlin, 152 AD3d 491, 492[2017]; Wells Fargo Bank, N.A. vThomas, 150 AD3d 1312, 1313 [2017]). " '[W]here 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' " (Wells Fargo Bank, N.A. vThomas, 150 AD3d at 1313, quoting Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d 861, 863[2017]). Further, the plaintiff established its prima facie entitlement to judgment as a matter oflaw by producing the consolidated mortgage, the consolidated note, and evidence of the default(see Bank of Am., N.A. v DeNardo,151 AD3d 1008, 1010 [2017]; Wells Fargo Bank, N.A. v Archibald, 150 AD3d at938). In opposition, the appellants failed to raise a triable issue of fact. Accordingly, the SupremeCourt properly granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the appellants and for an order ofreference.
Further, "[o]n a defendant's motion to dismiss a complaint based upon the plaintiff's allegedlack of standing, 'the burden is on the moving defendant to establish, prima facie, the plaintiff'slack of standing' as a matter of law" (DLJ Mtge. Capital, Inc. v Pittman, 150 AD3d 818, 820 [2017],quoting Deutsche Bank Trust Co. Ams.v Vitellas, 131 AD3d 52, 59 [2015]). Since the plaintiff had attached the consolidatednote endorsed in blank to the summons and complaint at the time the action was commenced, theappellants failed to meet this burden (see Deutsche Bank Natl. Trust Co. v Carlin, 152AD3d at 492; U.S. Bank N.A. vGuy, 125 AD3d 845, 847 [2015]). Accordingly, the Supreme Court properly denied thatbranch of the appellants' cross motion which was pursuant to CPLR 3211 (a) (3) to dismiss thecomplaint insofar as asserted against them for lack of standing.
The Supreme Court also properly denied that branch of the appellants' cross motion whichwas for a hearing to determine whether the plaintiff met its obligation to negotiate in good faithpursuant to CPLR 3408 (f). The appellants failed to sufficiently allege that the totality of thecircumstances demonstrated that the plaintiff's conduct did not constitute a meaningful effort atreaching a resolution to warrant a hearing (see CitiMortgage, Inc. v Pugliese, 143 AD3d 659, 661-662 [2016];PNC Bank, N.A. v Campbell, 142AD3d 1147, 1148 [2016]; WellsFargo Bank, N.A. v Miller, 136 AD3d 1024, 1025 [2016]). Rivera, J.P., Hall, Miller andDuffy, JJ., concur.