| U.S. Bank N.A. v Greenberg |
| 2019 NY Slip Op 00323 [168 AD3d 893] |
| January 16, 2019 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee, Successor inInterest to Wachovia Bank, National Association, as Trustee for Master Alternative Loan Trust2003-7 Mortgage Pass through Certificates, Series 2003-7, Respondent, v Wayne B.Greenberg, Also Known as Wayne Greenberg, et al., Appellants, et al.,Defendants. |
Richard A. Rosenzweig, P.C., Staten Island, NY, for appellants.
Shapiro DiCaro & Barak, LLC, Rochester, NY (Jason P. Dionisio of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Wayne B. Greenberg and Cathy E.Greenberg appeal from two orders of the Supreme Court, Richmond County (Judith N.McMahon, J.), dated December 15, 2016, and March 21, 2017, respectively. The order datedDecember 15, 2016, insofar as appealed from, granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendantsWayne B. Greenberg and Cathy E. Greenberg and for an order of reference, and denied thatbranch of the cross motion of those defendants which was for summary judgment dismissing thecomplaint insofar as asserted against them. The order dated March 21, 2017, insofar as appealedfrom, granted that branch of the plaintiff's motion which was to strike the answer of thedefendant Wayne B. Greenberg and appointed a referee to compute the money owed.
Ordered that the orders dated December 15, 2016, and March 21, 2017, are affirmed insofaras appealed from, with one bill of costs.
The defendants Wayne B. Greenberg and Cathy E. Greenberg (hereinafter together thedefendants) executed, in favor of the plaintiff's predecessors in interest, two promissory notes,both secured by mortgages on certain residential property, as well as a consolidation, extension,modification agreement (hereinafter CEMA), consolidating the notes and mortgages, and aconsolidated note evidencing the total amount of the debt following consolidation. Upon thedefendants' alleged default in making payments on the debt, the plaintiff commenced the instantforeclosure action. The plaintiff moved, inter alia, for summary judgment on the complaintinsofar as asserted against the defendants, to strike the defendants' answer, and for an order ofreference. The defendants cross-moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against them. The Supreme Court granted those branches of theplaintiff's motion and denied that branch of the defendants' cross motion.
Generally, in an action to foreclose a mortgage, a plaintiff establishes its prima facieentitlement to judgment as a matter of law through the production of the mortgage, the unpaidnote, and evidence of default (see HSBCBank USA, N.A. v Oscar, 161 AD3d 1055, 1056 [2018]; US Bank N.A. v Cohen, 156 AD3d844, 845 [2017]; Deutsche BankNatl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015]). However, where, as here, aplaintiff's standing to commence a foreclosure action is placed in issue by a defendant, theplaintiff must also prove its standing as part of its prima facie showing (see HSBC BankUSA, N.A. v Oscar, 161 AD3d at 1056; US Bank N.A. v Cohen, 156 AD3d at 845;Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d at 1002). "A plaintiff has standing tocommence a foreclosure action where it is the holder or assignee of the underlying note, either byphysical delivery or execution of a written assignment prior to the commencement of the actionwith the filing of the complaint" (HSBC Bank USA, N.A. v Oscar, 161 AD3d at 1056[internal quotation marks omitted]; seeAurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]; US Bank N.A. vCohen, 156 AD3d at 845). Once a note is transferred, the mortgage passes as an incident tothe note (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361; US Bank N.A. vCohen, 156 AD3d at 846).
Here, the plaintiff established, prima facie, its standing by demonstrating that theconsolidated note was in its possession when it commenced the action, as evidenced by itsattachment of a copy of the consolidated note endorsed in blank to the summons and complaint(see HSBC Bank USA, N.A. v Oscar, 161 AD3d at 1056; U.S. Bank N.A. v Henry, 157 AD3d839, 841 [2018]; US Bank N.A. v Cohen, 156 AD3d at 846; U.S. Bank N.A. v Sabloff, 153 AD3d879, 880 [2017]; U.S. Bank N.A. vSaravanan, 146 AD3d 1010, 1011 [2017]; JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 645[2016]). Accordingly, the defendants' arguments questioning the validity of the assignments ofmortgage are irrelevant to the plaintiff's standing (see Aurora Loan Servs., LLC v Taylor,25 NY3d at 362). Further, where the note is affixed to the complaint, it is unnecessary to givefactual details of the delivery in order to establish that possession was obtained prior to aparticular date (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 362; U.S. BankN.A. v Henry, 157 AD3d at 841; Wells Fargo Bank, N.A. v Thomas, 150 AD3d 1312, 1313[2017]; JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d at 645). Moreover, theplaintiff established its prima facie entitlement to judgment as a matter of law by producing themortgage, the note, and evidence of default. In opposition, the defendants failed to raise a triableissue of fact.
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, to strike the defendants' answer, and for an order of reference, and to deny thedefendants' cross motion for summary judgment dismissing the complaint insofar as assertedagainst them. Rivera, J.P., Leventhal, Barros and Brathwaite Nelson, JJ., concur.