| Bank of N.Y. Mellon v Lopes |
| 2018 NY Slip Op 01041 [158 AD3d 662] |
| February 14, 2018 |
| Appellate Division, Second Department |
[*1]
| Bank of New York Mellon, Formerly Known as The Bank ofNew York Mellon, as Trustee for the Certificateholders of the CWABS, Inc. Asset BackedCertificates Series 2006-2, Respondent, v Bernil Lopes et al., Appellants, et al.,Defendants. |
Ardito & Ardito, LLP, Franklin Square, NY (John A. Ardito of counsel), forappellants.
Davidson Fink, LLP, Rochester, NY (Larry T. Powell of counsel), for respondent.
Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), datedJune 29, 2015. The 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 Bernil Lopes and Beverly Lopes and for an order of reference.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants Bernil Lopes and Beverly Lopes (hereinafter together the defendants)executed a note dated September 2, 2005, in the sum of $395,000, in favor of Countrywide HomeLoans, Inc. (hereinafter Countrywide). The note was secured by a mortgage on residentialproperty located in South Floral Park. The mortgage was later assigned by Mortgage ElectronicRegistration Systems, Inc., as nominee for Countrywide, to the plaintiff, Bank of New YorkMellon.
In October 2012, the plaintiff commenced this action to foreclose the mortgage. Thedefendants served an answer in which they asserted various affirmative defenses, including thatthe plaintiff lacked standing. Thereafter, the plaintiff moved, inter alia, for summary judgment onthe complaint insofar as asserted against the defendants and for an order of reference. Thedefendants opposed the motion. The Supreme Court granted the motion, and the defendantsappeal.
"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" (Deutsche BankNatl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015] [internal quotation marksomitted]; see Hudson City Sav. Bank vGenuth, 148 AD3d 687, 688-689 [2017]). Where a plaintiff's standing to commence aforeclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove itsstanding to be entitled to relief (seeDeutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725, 726 [2017]; Wells Fargo Bank, N.A. v Arias, 121AD3d 973, 973-974 [2014]). A plaintiff establishes its standing in a mortgage foreclosureaction by demonstrating that, when the action was commenced, it was either the holder orassignee of the underlying note (seeAurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]; U.S. Bank, N.A. v Noble, 144 AD3d786, 787 [2016]; U.S. Bank, N.A. vCollymore, 68 AD3d 752, 753-754 [2009]). "Either a written assignment of theunderlying note or the physical delivery of the note prior to the commencement of the foreclosureaction is sufficient to transfer the obligation, and the mortgage passes with the debt as aninseparable incident" (Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726[internal quotation marks [*2]omitted]; see U.S. Bank N.A. v Saravanan, 146AD3d 1010, 1011 [2017]; DeutscheBank Natl. Trust Co. v Logan, 146 AD3d 861, 862 [2017]).
Here, the plaintiff established, prima facie, that it had standing to commence the action bysubmitting the affidavit of a foreclosure specialist for the loan servicer, who stated that, basedupon her review of the records for the subject loan, the plaintiff was the holder of the originalnote prior to commencement of the action, and that the note was delivered to the plaintiff prior tocommencement of the action. The plaintiff also submitted a copy of the note containing anendorsement in blank by Countrywide, the original lender (see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890 [2017]; Bank of Am., N.A. v Barton, 149AD3d 676, 678 [2017]). Moreover, the plaintiff established its prima facie entitlement tojudgment as a matter of law by producing the note, the mortgage, and evidence of default.Contrary to the defendants' contention, the plaintiff demonstrated the admissibility of thebusiness records upon which the foreclosure specialist relied under the business recordsexception to the hearsay rule (see CPLR 4518 [a]), because she averred in her affidavitthat she had personal knowledge of the plaintiff's records and record-making practices (cf. HSBC Mtge. Servs., Inc. v Royal,142 AD3d 952, 954 [2016]; U.S.Bank N.A. v Handler, 140 AD3d 948, 949 [2016]).
In opposition, the defendants failed to raise a triable issue of fact.
The defendants' remaining contentions are without merit.
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 for an order of reference. Leventhal, J.P., Austin, Maltese and Iannacci, JJ., concur.