| US Bank N.A. v Ballin |
| 2018 NY Slip Op 01212 [158 AD3d 786] |
| February 21, 2018 |
| Appellate Division, Second Department |
[*1]
| US Bank N.A., as Trustee for the Registered Holders of CSMCAsset-Backed Trust 2007-NC1 OSI, CSMC Asset-Backed Pass through Certificates, Series2007-NC1 OSI, Respondent, v Winston Ballin et al., Appellants, et al.,Defendants. |
Winston Ballin and Julie Ballin, Effort, Pennsylvania, appellants pro se.
Houser & Allison, APC, New York, NY (Zachary Gold of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Winston Ballin and Julie Ballin appeal,as limited by their brief, from so much of an order of the Supreme Court, Westchester County(Smith, J.), dated October 8, 2015, as granted those branches of the plaintiff's motion which werefor summary judgment on the complaint insofar as asserted against them, to strike their answer,and to appoint a referee.
Ordered that the appeal by the defendant Julie Ballin is dismissed; and it is further,
Ordered that the appeal by the defendant Winston Ballin from so much of the order asgranted those branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against the defendant Julie Ballin and to strike the answer insofar asasserted by the defendant Julie Ballin is dismissed, as he is not aggrieved by that portion of theorder (see CPLR 5511; Mixon vTBV, Inc., 76 AD3d 144 [2010]); and it is further,
Ordered that the order is reversed insofar as reviewed on the appeal by the defendantWinston Ballin, on the law, those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the defendant Winston Ballin, to strike theanswer insofar as asserted by the defendant Winston Ballin, and to appoint a referee are denied,and so much of the order as granted those branches of the plaintiff's motion which were forsummary judgment on the complaint insofar as asserted against the defendant Julie Ballin and tostrike the answer insofar as asserted by the defendant Julie Ballin is vacated; and it isfurther,
Ordered that one bill of costs is awarded to the defendant Winston Ballin.
On November 17, 2006, the defendant Winston Ballin executed a note in the amount of$612,000 in favor of the original lender, New Century Mortgage Corporation. Winston Ballinand the defendant Julie Ballin (hereinafter together the Ballins) executed a mortgage securingreal property in favor of the original lender, with Mortgage Electronic Registration Systems, Inc.,"acting solely as a nominee for Lender and Lender's successors and assigns."
In October 2009, the plaintiff commenced this action to foreclose the mortgage, [*2]alleging that the Ballins defaulted on the loan by failing to make thepayment due on September 1, 2008, and subsequent payments due thereafter. The Ballins servedan answer in which they asserted as an affirmative defense that the plaintiff lacked standing tocommence the action. The plaintiff moved, inter alia, for summary judgment on the complaintinsofar as asserted against the Ballins, to strike their answer, and to appoint a referee. TheSupreme Court granted the motion, and the Ballins appeal.
Julie Ballin did not oppose the plaintiff's motion and, therefore, is not aggrieved by the ordergranting that motion (see Mixon v TBV,Inc., 76 AD3d 144, 157 n 3 [2010]; Whiteman v Yeshiva & Mesivta TorahTemimah, 255 AD2d 378, 379 [1998]). Accordingly, the appeal by Julie Ballin must bedismissed.
The plaintiff's standing was placed in issue by the Ballins' answer. Consequently, on itsmotion for summary judgment, the plaintiff was required to prove its standing as part of its primafacie showing (see Deutsche Bank Natl.Trust Co. v Idarecis, 133 AD3d 702, 703 [2015]; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973 [2014]; U.S. Bank, N.A. v Collymore, 68AD3d 752 [2009]). "A plaintiff establishes its standing in a mortgage foreclosure action bydemonstrating that it is the holder or assignee of the underlying note at the time the action iscommenced" (LNV Corp. vFrancois, 134 AD3d 1071, 1072 [2015]). "Either a written assignment of the underlyingnote or the physical delivery of the note prior to the commencement of the foreclosure action issufficient to transfer the obligation" (U.S. Bank, N.A. v Collymore, 68 AD3d at754).
The plaintiff attempted to establish its standing by submitting an affidavit of Jillian Thrasher,a contract management coordinator at Ocwen Loan Servicing, LLC (hereinafter Ocwen), theplaintiff's loan servicer. Thrasher averred, in relevant part, that her affidavit was based upon herreview of Ocwen's business records, and that upon review of such records, the note wasphysically transferred to the plaintiff on December 1, 2006. The plaintiff failed to demonstratethat the records relied upon by Thrasher were admissible under the business records exception tothe hearsay rule (see CPLR 4518 [a]) because Thrasher, an employee of Ocwen, did notattest that she was personally familiar with the plaintiff's record-keeping practices and procedures(see Bank of N.Y. v Willis, 150AD3d 652, 653 [2017]; Arch BayHoldings, LLC v Albanese, 146 AD3d 849, 852 [2017]; Aurora Loan Servs., LLC v Mercius,138 AD3d 650, 652 [2016]). Thus, the plaintiff failed to establish, prima facie, that it hadstanding to commence the action.
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 Winston Ballin,to strike the answer insofar as asserted by Winston Ballin, and to appoint a referee, withoutregard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
In light of the foregoing, Winston Ballin's remaining contentions need not be reached.Rivera, J.P., Roman, LaSalle and Barros, JJ., concur.