| US Bank N.A. v Coppola |
| 2017 NY Slip Op 09191 [156 AD3d 934] |
| December 27, 2017 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, as Trustee for Credit SuisseFirst Boston Mortgage Securities Corp., CSAB Mortgage-Backed Trust 2006-1, CSABMortgage-Backed Pass-Through Certificates, Series 2006-1, Respondent, v JohnCoppola, Appellant, et al., Defendants. |
Rubin & Licatesi, P.C., Garden City, NY (Richard H. Rubin and Amy J. Zamir ofcounsel), for appellant.
Hogan Lovells US LLP, New York, NY (Benjamin P. Jacobs, David Dunn, and ChavaBrandriss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant John Coppola appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Modica, J.), entered July10, 2015, as granted that branch of the plaintiff's motion which was for summary judgment onthe complaint insofar as asserted against him and denied his cross motion for summary judgmentdismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by adefendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Central Mtge. Co. v Jahnsen, 150AD3d 661, 662-663 [2017]; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725, 726[2017]; Wells Fargo Bank, N.A. vArias, 121 AD3d 973, 973-974 [2014]). A plaintiff establishes its standing in amortgage foreclosure action by demonstrating that, when the action was commenced, it waseither the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362[2015]; Central Mtge. Co. v Jahnsen, 150 AD3d at 663; U.S. Bank, N.A. v Collymore, 68AD3d 752, 753-754 [2009]). "Either a written assignment of the underlying note or thephysical delivery of the note prior to the commencement of the foreclosure action is sufficient totransfer the obligation, and the mortgage passes with the debt as an inseparable incident"(Central Mtge. Co. v Jahnsen, 150 AD3d at 663 [internal quotation marks omitted];see Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726).
Here, the note, indorsed in blank, was annexed to the complaint at the time the action wascommenced, which was sufficient to establish standing (see Deutsche Bank Natl. Trust Co. v Carlin, 152 AD3d 491, 492[2017]; U.S. Bank N.A. vSaravanan, 146 AD3d 1010, 1011 [2017]; JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 645[2016]). The plaintiff further sustained its burden of demonstrating its prima facie entitlement tojudgment as a matter of law by submitting the mortgage, the note, and proof of the appellant'sdefault in repaying the mortgage loan (see U.S. Bank N.A. v Saravanan, 146 AD3d at1011).
In opposition, the appellant failed to raise a triable issue of fact and failed to [*2]demonstrate his entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against him. The appellant's contention that theaffidavit of the vice president of loan documentation for the plaintiff's loan servicing agent wasinsufficient to establish standing, since it failed to give factual details as to the physical deliveryof the note, is without merit. "There is simply no requirement that an entity in possession of anegotiable instrument that has been endorsed in blank must establish how it came into possessionof the instrument in order to be able to enforce it" (JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d at 645; see UCC 3-204 [2]). "Moreover, it is unnecessary togive factual details of the delivery in order to establish that possession was obtained prior to aparticular date" (JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d at 645; seeAurora Loan Servs., LLC v Taylor, 25 NY3d at 362).
Finally, as a mortgagor whose loan was owned by a trust, the appellant does not havestanding to challenge the plaintiff's possession or status as assignee of the note based onpurported noncompliance with certain provisions of the relevant pooling and servicing agreement(see Wells Fargo Bank, N.A. vArchibald, 150 AD3d 935, 936-937 [2017]; U.S. Bank N.A. v Saravanan, 146AD3d at 1012).
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion whichwas for summary judgment on the complaint insofar as asserted against the appellant, andproperly denied the appellant's cross motion for summary judgment dismissing the complaintinsofar as asserted against him. Mastro, J.P., Chambers, LaSalle and Brathwaite Nelson, JJ.,concur.