| Wells Fargo Bank, N.A. v Frankson |
| 2018 NY Slip Op 00328 [157 AD3d 844] |
| January 17, 2018 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Respondent, v SusanFrankson et al., Appellants, et al., Defendants. |
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Juan Paolo F. Dizonof counsel), for appellants.
McGlinchey Stafford PLLC, New York, NY (Mitra P. Singh and Victor L. Matthews ofcounsel), for respondent.
Appeals from two orders of the Supreme Court, Kings County (Peter P. Sweeney, J.), bothdated December 17, 2015. The first order, insofar as appealed from, granted those branches ofthe plaintiff's motion which were for summary judgment on the complaint insofar as assertedagainst the defendants Susan Frankson and Michelle Roberts and, in effect, for an order ofreference. The second order, insofar as appealed from, granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted against thedefendants Susan Frankson and Michelle Roberts and, in effect, for an order of reference, andappointed a referee to compute the amount due to the plaintiff.
Ordered that the appeal from so much of the first order dated December 17, 2015, as grantedthose branches of the plaintiff's motion which were for summary judgment on the complaintinsofar as asserted against the defendants Susan Frankson and Michelle Roberts and, in effect,for an order of reference is dismissed, as those portions of the order were superseded by thesecond order dated December 17, 2015; and it is further,
Ordered that the second order dated December 17, 2015, is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
"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]; see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684[2016]). Additionally, where, as here, standing is put into issue by a defendant, the plaintiff mustprove its standing in order to be entitled to relief (see Aurora Loan Servs., LLC v Taylor, 114 AD3d 627, 628 [2014],affd 25 NY3d 355 [2015]). Aplaintiff in a mortgage foreclosure action has standing where it is the holder or assignee of theunderlying note at the time the action is commenced (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361 [2015]; U.S. Bank N.A. v Handler, 140 AD3d 948, 949 [2016]). Either awritten assignment of the underlying note or the physical [*2]delivery of the note is sufficient to transfer the obligation, and themortgage passes with the debt as an inseparable incident (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2009]).
Here, the plaintiff demonstrated, prima facie, that it was the holder of the note at the time theaction was commenced, as evidenced by its attachment of the note, endorsed in blank, to thesummons and complaint at the time the action was commenced (see Deutsche Bank Trust Co. Ams. vGarrison, 147 AD3d 725, 726 [2017]; U.S. Bank N.A. v Saravanan, 146 AD3d 1010 [2017]; Deutsche Bank Natl. Trust Co. vLogan, 146 AD3d 861 [2017]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866 [2016]; JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d 643, 645 [2016]; JPMorgan Chase Bank, N.A. v Roseman, 137 AD3d 1222, 1223[2016]; Deutsche Bank Natl. Trust Co. vLeigh, 137 AD3d 841, 842 [2016]). Furthermore, the plaintiff demonstrated its primafacie entitlement to judgment as a matter of law by submitting the mortgage, the note, and anaffidavit of its loan servicer's document control officer, attesting to the borrower's default underthe terms of the loan (see Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726;Deutsche Bank Natl. Trust Co. v Leigh, 137 AD3d at 842). In opposition, the defendantsSusan Frankson and Michelle Roberts (hereinafter the defendants) failed to raise a triable issue offact.
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 defendantsand, in effect, for an order of reference. Mastro, J.P., Hall, Sgroi and Duffy, JJ., concur.