| Wells Fargo Bank, N.A. v Inigo |
| 2018 NY Slip Op 05621 [164 AD3d 545] |
| August 1, 2018 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Respondent, v Mark John S.Inigo et al., Appellants, et al., Defendants. |
Mark John S. Inigo and Mercedita S. Inigo, Staten Island, NY, appellants pro se.
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Heather R.Gushue of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Mark John S. Inigo and Mercedita S.Inigo appeal from an order of the Supreme Court, Richmond County (Philip S. Straniere, J.),dated December 21, 2015. The order, insofar as appealed from, denied those defendants' motionfor leave to amend their answers, denied that branch of their cross motion which was forsummary judgment dismissing the complaint insofar as asserted against them, and granted thatbranch of the plaintiff's motion which was for summary judgment on the complaint insofar asasserted against those defendants.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against Mark John S. Inigo and Mercedita S. Inigo(hereinafter together the defendants), among others, to foreclose a mortgage secured by certainreal property located in Staten Island. The defendants filed separate answers which both asserted,among other affirmative defenses, that the plaintiff lacked standing. Thereafter, the defendantsmoved for leave to amend their answers. The plaintiff opposed the motion and moved, inter alia,for summary judgment on the complaint insofar as asserted against the defendants. Thedefendants opposed the motion and cross-moved, inter alia, for summary judgment dismissingthe complaint insofar as asserted against them. The Supreme Court denied the defendants' motionfor leave to amend their answers and that branch of their cross motion which was for summaryjudgment dismissing the complaint insofar as asserted against them, and granted that branch ofthe plaintiff's motion which was for summary judgment on the complaint insofar as assertedagainst the defendants. The defendants appeal.
"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]). Additionally, where, as here, standing is placed in issueby a defendant, 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 in a mortgage foreclosure action has standing where it is the holder or assignee of theunderlying note, either by physical delivery or execution of a written assignment prior to thecommencement of the action with the filing of the complaint (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362[2015]; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 725).
[*2] Here, the plaintiff established that it had standing bydemonstrating that it had physical possession of the original note, endorsed to the plaintiff, at thetime the action was commenced (seeCitiMortgage, Inc. v McKinney, 144 AD3d 1073, 1074 [2016]; Rose Land & Fin. Corp. vVassiliades, 142 AD3d 658, 659 [2016]; Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898, 899 [2016]).Additionally, the plaintiff established its prima facie entitlement to judgment as a matter of lawby producing the mortgage, the unpaid note, and evidence of the defendants' default in repaymentof the loan (see Wells Fargo Bank, N.A. v Gallagher, 137 AD3d at 900).
Contrary to the defendants' contention, the plaintiff demonstrated the admissibility of thebusiness records upon which its vice president of loan documentation relied, under the businessrecords exception to the hearsay rule (see CPLR 4518 [a]; Citibank, N.A. v Gentile, 156 AD3d859, 860 [2017]; cf. HSBC Mtge.Servs., Inc. v Royal, 142 AD3d 952, 954 [2016]). Moreover, the plaintiff was notrequired to give factual details of the delivery of the note in order to establish that possession wasobtained prior to a particular date (seeHSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 824 [2017]; PennyMac Corp. v Chavez, 144 AD3d1006, 1007 [2016]; JPMorganChase Bank, N.A. v Weinberger, 142 AD3d 643, 645 [2016]; see generally AuroraLoan Servs., LLC v Taylor, 25 NY3d at 362). Finally, the defendants' arguments regardingthe assignment of the mortgage are irrelevant to the issue of standing in this case (see Silvergate Bank v Calkula Props.,Inc., 150 AD3d 1295, 1296 [2017]; Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099, 1100[2015]).
In opposition, the defendants failed to raise a triable issue of fact. For the same reasons, thedefendants failed to establish their prima facie entitlement to summary judgment dismissing thecomplaint insofar as asserted against them.
The Supreme Court providently exercised its discretion in denying the defendants' motion forleave to amend their answers (see CPLR 3025; Bloom v Lugli, 102 AD3d 715, 718 [2013]). Leventhal, J.P., Sgroi,LaSalle and Brathwaite Nelson, JJ., concur.