| HSBC Bank USA, N.A. v Ehrenthal |
| 2018 NY Slip Op 01046 [158 AD3d 668] |
| February 14, 2018 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, National Association, as Trustee for MHL2007-2, Respondent, v Samuel Ehrenthal et al., Appellants, et al.,Defendants. |
Menashe & Associates, LLP, Montebello, NY (Michael Dachs of counsel), forappellants.
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Chenxi Jiao ofcounsel), for respondent.
Appeal from an order of the Supreme Court, Rockland County (Gerald E. Loehr, J.), enteredJanuary 26, 2016. 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 Samuel Ehrenthal and Frimet Ehrenthal, to dismiss the affirmative defenses of thosedefendants, in effect, for leave to amend the caption to name HSBC Bank USA NationalAssociation, as trustee for MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2,Mortgage Pass-Through Certificates, as the plaintiff, and for an order of reference, and denied thecross motion of the defendants Samuel Ehrenthal and Frimet Ehrenthal for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the plaintiff's motion which were for summary judgment on the complaintinsofar as asserted against the defendants Samuel Ehrenthal and Frimet Ehrenthal, to dismiss theaffirmative defenses of those defendants, in effect, for leave to amend the caption to name HSBCBank USA, National Association, as trustee for MortgageIT Securities Corp. Mortgage LoanTrust, Series 2007-2, Mortgage Pass-Through Certificates, as the plaintiff, and for an order ofreference, and substituting therefor a provision denying those branches of the plaintiff's motion;as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
In June 2007, the defendant Samuel Ehrenthal borrowed $800,000 from 25 MortgageIT, Inc.(hereinafter MortgageIt). The note and mortgage on the subject property were delivered toMortgage Electronic Registration Systems, Inc., as nominee for MortgageIT. The mortgage wassubsequently securitized and assigned to HSBC Bank USA, National Association, as trustee forMHL 2007-2 (hereinafter the plaintiff).
In August 2009, the plaintiff commenced this mortgage foreclosure action against, amongothers, Samuel Ehrenthal and his wife Frimet Ehrenthal (hereinafter together the defendants).[*2]After the defendants served an answer raising the issue ofstanding to sue, the plaintiff moved, inter alia, for summary judgment on the complaint insofar asasserted against the defendants, to dismiss the defendants' affirmative defenses, in effect, forleave to amend the caption to name HSBC Bank USA, National Association, as trustee forMortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2, Mortgage Pass-ThroughCertificates (hereinafter HSBC), as the plaintiff, and for an order of reference. The defendantscross-moved for summary judgment dismissing the complaint insofar as asserted against themfor lack of standing. The Supreme Court granted the motion and denied the cross motion.
Where, as here, a plaintiff's standing has been placed in issue by the defendants' answer, theplaintiff must prove its standing as part of its prima facie showing on a motion for summaryjudgment (see Flagstar Bank, FSB vMendoza, 139 AD3d 898, 899 [2016]; LaSalle Bank, N.A. v Zaks, 138 AD3d 788 [2016]; Aurora Loan Servs., LLC v Mercius,138 AD3d 650, 651 [2016]). In a foreclosure action, a plaintiff has standing if it is the holderor assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor,25 NY3d 355, 361-362 [2015]; OneW. Bank, FSB v Albanese, 139 AD3d 831, 832 [2016]; Aurora Loan Servs., LLC vMercius, 138 AD3d at 651).
Here, the plaintiff failed to meet its prima facie burden of establishing that it had standing tocommence the action. In support of its motion, the plaintiff relied upon the affidavit of MahiletAyalew, a vice president of the loan servicer, who stated that HSBC had possession of the noteprior to and at the time of the commencement of the action. In the absence of an allegation andevidence that HSBC was the same entity as the plaintiff, that affidavit was insufficient toestablish standing.
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendants, todismiss the defendants' affirmative defenses, in effect, for leave to amend the caption to nameHSBC as the plaintiff, and for an order of reference.
The Supreme Court properly denied the defendants' cross motion for summary judgmentdismissing the complaint insofar as asserted against them for lack of standing. "[T]he burden ison the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than onthe plaintiff to affirmatively establish its standing in order for the motion to be denied" (Deutsche Bank Trust Co. Ams. vVitellas, 131 AD3d 52, 59-60 [2015]; see Aurora Loan Servs., LLC v Mercius,138 AD3d at 652). Here, the defendants, who merely relied upon the plaintiff's submissions,failed to make a prima facie showing that the plaintiff lacked standing (see Aurora LoanServs., LLC v Mercius, 138 AD3d at 652; Deutsche Bank Trust Co. Ams. v Vitellas,131 AD3d at 59-60). Dillon, J.P., Leventhal, Hinds-Radix and LaSalle, JJ., concur.