| Deutsche Bank Natl. Trust Co. v Anderson |
| 2018 NY Slip Op 03661 [161 AD3d 1043] |
| May 23, 2018 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee under thePooling and Servicing Agreement Relating to IMPAC Secured Assets Corp., MortgagePass-Through Certificates, Series 2006-3, Appellant, v Sandra Anderson, AppointedExecutrix of the Estate of Floyd Bailey, Also Known as Floyd Bailey, Sr., Deceased,Respondent, et al., Defendants. |
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Sarah J. Greenberg ofcounsel), for appellant.
Sandra Anderson, Jamaica, NY, respondent pro se.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Queens County (David Elliot, J.), dated July 22, 2015. The order, insofar as appealedfrom, denied those branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against the defendant Sandra Anderson and for leave to appoint areferee to compute the sums due the plaintiff.
Ordered that the order is affirmed insofar as appealed from, with costs.
On July 26, 2006, Floyd Bailey executed a promissory note in the principal sum of $470,250in favor of IMPAC Funding Corporation, doing business as IMPAC Lending Group (hereinafterIMPAC), which was secured by a mortgage on residential property located in South Ozone Park.Bailey defaulted on the loan by failing to make the monthly installment payment due onDecember 1, 2007. Thereafter, Bailey died and, by a decree of the Surrogate's Court datedAugust 23, 2012, the defendant Sandra Anderson was appointed as executrix of his estate. OnNovember 21, 2013, the plaintiff commenced this action to foreclose the mortgage against,among others, Anderson, as executrix of Bailey's estate. After issue was joined, the plaintiffmoved, inter alia, for summary judgment on the complaint and for leave to appoint a referee. Insupport of the motion, the plaintiff asserted, inter alia, that the note had been lost or destroyedand it would seek to prove the promissory note using a lost note affidavit along with a copy ofthe original note. Anderson opposed the motion. The Supreme Court denied those branches ofthe plaintiff's motion which were for summary judgment on the complaint insofar as assertedagainst Anderson and for leave to appoint a referee. The plaintiff appeals.
"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]; see Hudson City Sav. Bank v Genuth,148 AD3d 687 [2017]). Pursuant to UCC 3-804, which is intended to provide a method ofrecovery on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit "dueproof of [the plaintiff's] ownership, the facts which prevent [its] production of [the note,] and itsterms" (UCC 3-804; see Weiss vPhillips, 157 AD3d 1 [2017]; US Bank N.A. v Richards, 155 AD3d 522 [2017]).
Here, the Supreme Court properly concluded that, although the plaintiff was unable toproduce the note, a copy of the note submitted by the plaintiff provided sufficient evidence of itsterms (see New York Community Bank v Jennings, 2015 NY Slip Op 31591 [U], *4[Sup Ct, Queens County 2015]). However, the lost note affidavit of Michael Matz and theaffidavit of Debra Lee Wojciechowski, both officers of Bank of America, N.A., the purportedservicer of the subject loan, are inconsistent with each other and contain vague and conclusorystatements. Matz's affidavit states that the loan servicer "or its predecessor (as servicer or bymerger) or the custodian" acquired possession of the note on or before August 4, 2006, and theloss of the note was not due to transfer or seizure. Wojciechowski's affidavit claimed that theloan servicer acquired possession of the lost note affidavit on or before December 28, 2012, andmaintained continuous physical possession of the note until the loss occurred. It was not clearwhen the loan servicer or its agent acquired possession of the note, or whether the loan serviceror an agent of the loan servicer acquired the note. Moreover, Matz's affidavit fails to providesufficient facts as to when the search for the note occurred, who conducted the search, the stepstaken in the search for the note, or when or how the note was lost (see US Bank N.A. v Richards, 155AD3d 522 [2017]; Ventricelli v DeGennaro, 221 AD2d 231, 232 [1995];Marrazzo v Piccolo, 163 AD2d 369 [1990]; cf. Citibank, N.A. v Benedict, 2000WL 322785, 2000 US Dist LEXIS 3815 [SD NY, Mar. 28, 2000, No. 95 Civ 9541 AGS]). Thus,the affidavits failed to sufficiently establish the plaintiff's ownership of the note.
Accordingly, the Supreme Court properly denied those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against Anderson and forleave to appoint a referee to compute the sums due the plaintiff. Dillon, J.P., Austin, Miller andHinds-Radix, JJ., concur. [Prior Case History: 2015 NY Slip Op 31371(U).]