| U.S. Bank N.A. v Duthie |
| 2018 NY Slip Op 03167 [161 AD3d 809] |
| May 2, 2018 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee, Successor inInterest to Bank of America, National Association, as Successor by Merger to LaSalle Bank,National Association, as Trustee for WaMu Mutual Mortgage Pass-Through Certificates Series2006-AR12 Trust, Respondent, v Hugh Duthie, Appellant, et al.,Defendants. |
R. David Marquez, P.C., Mineola, NY, for appellant.
Bonchonsky & Zaino, LLP, Garden City, NY (Peter R. Bonchonsky and Kevin M.Butler of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Hugh Duthie appeals from an order of theSupreme Court, Kings County (Carolyn E. Demarest, J.), dated February 5, 2015. The order,insofar as appealed from, after a hearing, granted those branches of the plaintiff's motion whichwere for summary judgment on the complaint insofar as asserted against the defendant HughDuthie and for an order of reference.
Ordered that the order is affirmed insofar as appealed from, with costs.
On August 1, 2006, Hugh Duthie (hereinafter the defendant) executed a note in the sum of$940,000 in favor of Washington Mutual Bank, FA (hereinafter Washington Mutual), which wassecured by a mortgage on a residential condominium unit located in Brooklyn. By assignment ofmortgage dated December 23, 2011, "JPMorgan Chase Bank, National Association, successor ininterest by purchase from the FDIC as receiver of Washington Mutual Bank f/k/a WashingtonMutual Bank, FA," assigned the mortgage to "U.S. Bank National Association, as trustee,successor in interest to Bank of America, National Association as trustee as successor by mergerto LaSalle Bank, National Association as trustee for WAMU Mortgage Pass-Through CertificatesSeries 2006-AR12 Trust" (hereinafter the plaintiff).
In January 2012, the plaintiff commenced this action against the defendant, among others, toforeclose the mortgage. The defendant served an answer in which he asserted various affirmativedefenses, including that the plaintiff lacked standing. After discovery was conducted, the plaintiffmoved, inter alia, for summary judgment on the complaint and for an order of reference. Insupport of its motion, the plaintiff submitted the affidavit of Amber Alegria, an assistantsecretary for JPMorgan Chase Bank, N.A. (hereinafter Chase), in which she averred that Chasewas "attorney in fact" for the plaintiff. According to Alegria, the note and mortgage wereassigned to the plaintiff by Chase "as Washington Mutual's successor in interest by purchasefrom the FDIC as Receiver of Washington Mutual," as memorialized in the Assignment ofMortgage dated December 23, 2011. Alegria further averred that Chase, "as servicer and attorneyin fact" for the plaintiff, was the holder of the note and mortgage at the time of thecommencement of the action.
In an order dated November 17, 2014, the Supreme Court, inter alia, held in abeyance [*2]those branches of the plaintiff's motion which were for summaryjudgment on the complaint and for an order of reference pending a hearing on the issue of "theplaintiff's physical receipt of the note and its possession [of the note] at the commencement of the[action]." At the conclusion of the hearing, the court found that the plaintiff established that ithad physical possession of the note at the time of the commencement of the action. In an orderdated February 5, 2015, the court granted those branches of the plaintiff's motion which were forsummary judgment on the complaint insofar as asserted against the defendant and for an order ofreference. The defendant appeals.
A plaintiff in a mortgage foreclosure action has standing where it is the holder or assignee ofthe underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015];Bank of Am., N.A. v Martinez, 153AD3d 1219, 1220 [2017]). "Either a written assignment of the underlying note or thephysical delivery of the note prior to the commencement of the foreclosure action is sufficient totransfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]).
We agree with the Supreme Court's determination that the plaintiff established its standing.The plaintiff established, prima facie, its standing as the holder of the note through the testimonyat the hearing, and by demonstrating on its motion for summary judgment that a copy of the note,including an allonge containing an endorsement in blank, was among the various exhibitsannexed to the complaint. Thus, the plaintiff established its physical possession of the note, andits status as an assignee of the note, as of the date that the action was commenced (see U.S. Bank N.A. v Cox, 148 AD3d962, 963 [2017]; Emigrant Bank vLarizza, 129 AD3d 904, 905 [2015]). In opposition, the defendant failed to raise atriable issue of fact. Mastro, J.P., Balkin, Cohen and Duffy, JJ., concur. [Prior Case History:45 Misc 3d 1218(A), 2014 NY Slip Op 51626(U).]