| U.S. Bank, N.A. v Cardenas |
| 2018 NY Slip Op 02495 [160 AD3d 784] |
| April 11, 2018 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank, National Association, Successor Trustee to Bank ofAmerica, N.A., Successor by Merger to LaSalle Bank, N.A., as Trustee for the First FranklinMortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-FF1,Respondent, v Doris Cardenas, Appellant, et al., Defendants. |
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Juan Paolo F. Dizonof counsel), for appellant.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, NY (Christopher P.Kohn of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Doris Cardenas appeals from an order ofthe Supreme Court, Queens County (Thomas D. Raffaele, J.), entered January 26, 2016. Theorder, insofar as appealed from, granted those branches of the plaintiff's motion which were forsummary judgment on the complaint insofar as asserted against the defendant Doris Cardenasand for an order of reference.
Ordered that the order is affirmed insofar as appealed from, with costs.
In November 2006, the defendant Doris Cardenas (hereinafter the defendant) executed a notein the sum of $445,200 in favor of "First Franklin, A Division of National City Bank"(hereinafter First Franklin Bank). The note was secured by a mortgage on residential property inSouth Richmond Hill, Queens. The defendant defaulted on the loan by failing to make themonthly installment payment due April 1, 2013. The mortgage was later assigned to the plaintiff.In May 2014, the plaintiff commenced this action to foreclose the mortgage. The defendantserved an answer in which she asserted, among other things, the affirmative defense of lack ofstanding. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaintinsofar as asserted against the defendant and for an order of reference.
"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 [2017]). However, where a defendant places standing in issue,the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Trust Co. Ams. vGarrison, 147 AD3d 725 [2017]; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 973-974 [2014]).A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of theunderlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362[2015]; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726).
Here, the plaintiff produced the mortgage, the unpaid note, and evidence of the [*2]defendant's default. In addition, the plaintiff established, primafacie, its standing as the holder of the note at the time the action was commenced by submittingan affidavit of its attorneys' employee, who stated that the plaintiff's attorneys were in possessionof the original note endorsed in blank since October 24, 2013, a date which was prior to thecommencement of the action (see U.S.Bank N.A. v Ellis, 154 AD3d 710 [2017]; U.S. Bank N.A. v Cruz, 147 AD3d 1103, 1104 [2017]; PennyMac Corp. v Chavez, 144 AD3d1006, 1007 [2016]). In opposition, the defendant failed to raise a triable issue of fact.
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 defendant andfor an order of reference. Mastro, J.P., Balkin, Connolly and Christopher, JJ., concur.