| Bank of N.Y. Mellon v Theobalds |
| 2018 NY Slip Op 03824 [161 AD3d 1137] |
| May 30, 2018 |
| Appellate Division, Second Department |
[*1]
| Bank of New York Mellon, Formerly Known as The Bank of New York, as Trustee for the Certificateholders of the CWABS, Inc.,Asset-Backed Certificates, Series 2004-7, Respondent, v Phyllis Theobalds et al.,Appellants, et al., Defendants. |
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Juan Paolo Dizon ofcounsel), for appellants.
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Jessica J. Yoo andGeraldine Cheverko of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Phyllis Theobalds and Oral Theobaldsappeal from two orders of the Supreme Court, Queens County (Thomas D. Raffaele, J.), bothentered September 29, 2015. The first order, insofar as appealed from, granted those branches ofthe plaintiff's motion which were for summary judgment on the complaint insofar as assertedagainst those defendants and for an order of reference. The second order, insofar as appealedfrom, granted those branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against those defendants and for an order of reference, andappointed a referee to ascertain and compute the amount due to the plaintiff.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
The plaintiff commenced this mortgage foreclosure action in January 2015 against PhyllisTheobalds and Oral Theobalds (hereinafter together the defendants), among others. Thedefendants interposed a verified answer generally denying the allegations in the complaint andasserting various affirmative defenses, including lack of standing. Thereafter, the plaintiffmoved, inter alia, for summary judgment on the complaint insofar as asserted against thedefendants and for an order of reference. In two orders, both entered September 29, 2015, theSupreme Court granted the motion. The defendants appeal.
" 'Generally, in moving for summary judgment in an action to foreclose a mortgage,a plaintiff establishes its prima facie case through the production of the mortgage, the unpaidnote, and evidence of default' " (Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684[2016], quoting Plaza Equities, LLC vLamberti, 118 AD3d 688, 689 [2014]). However, where a defendant places standing inissue, the plaintiff must also prove its standing in order to be entitled to relief (see DeutscheBank Natl. Trust Co. v Brewton, 142 AD3d at 684; Aurora Loan Servs., LLC v Taylor, 114 AD3d 627, 628 [2014],affd 25 NY3d 355 [2015]; WellsFargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]). A plaintiff hasstanding in a mortgage foreclosure action when it is the holder or assignee of the underlying noteat the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at361; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d at 684). "Either a writtenassignment of the underlying note or the physical delivery of the note prior to the commencement[*2]of the foreclosure action is sufficient to transfer theobligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362;Dyer Trust 2012-1 v Global WorldRealty, Inc., 140 AD3d 827, 828 [2016]).
Here, the plaintiff established its standing to commence the action by demonstrating that thenote was in its possession at the time it commenced the action, as evidenced by its attachment ofa copy of the note, indorsed in blank, to the complaint at the time the action was commenced (see Deutsche Bank Natl. Trust Co. vCarlin, 152 AD3d 491, 492 [2017]; U.S. Bank N.A. v Saravanan, 146 AD3d 1010, 1011 [2017]; JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d 643, 645 [2016]). The plaintiff further sustained its burden ofdemonstrating its prima facie entitlement to judgment as a matter of law by submitting copies ofthe mortgage, the note, and evidence of the defendants' default in repaying the mortgage loan(see U.S. Bank N.A. v Saravanan, 146 AD3d at 1011). In opposition, the defendantsfailed to raise a triable issue of fact (seeEmigrant Bank v Marando, 143 AD3d 856 [2016]; TD Bank, N.A. v Mandia, 133 AD3d 590, 591 [2015]; seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Accordingly, we agree with the Supreme Court's determination to grant those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as asserted againstthe defendants and for an order of reference, and to appoint a referee to ascertain and computethe amount due to the plaintiff. Scheinkman, P.J., Leventhal, Miller and Brathwaite Nelson, JJ.,concur.