| Wells Fargo Bank, N.A. v Heiney |
| 2019 NY Slip Op 00636 [168 AD3d 1126] |
| January 30, 2019 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Respondent, v RaymondHeiney et al., Appellants, et al., Defendants. |
Stephen C. Silverberg, PLLC, Uniondale, NY, for appellants.
Hogan Lovells US LLP, New York, NY (Allison J. Schoenthal, Chava Brandriss, andHeather R. Gushue of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Raymond Heiney, Naema Sharon, alsoknown as Naema Heiney, and Nir Sharon appeal from an order of the Supreme Court, NassauCounty (Thomas A. Adams, J.), entered November 5, 2015. The order, insofar as appealed from,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.
Ordered that the order is affirmed insofar as appealed from, with costs.
In July 2013, the plaintiff commenced this action against Raymond Heiney and NaemaSharon, also known as Naema Heiney (hereinafter together the Heiney defendants) and NirSharon (hereinafter collectively the appellants), among others, to foreclose a mortgage given bythe Heiney defendants and secured by certain property in Nassau County. Nir Sharon is thehusband of Naema Sharon and is an occupant of the subject premises. The Heiney defendantsinterposed an answer in which they asserted, among other things, the affirmative defense that theplaintiff lacked standing and the defense that the plaintiff failed to comply with RPAPL 1304.Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint and for anorder of reference. The Supreme Court granted the motion.
"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]). Moreover, where, as here, standing is placed in issue bya 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 at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362[2015]; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 725).
The plaintiff established, prima facie, its standing to commence this action by demonstratingthat it had physical possession of the original note, endorsed in blank, at the time the action wascommenced (see Wells Fargo Bank,N.A. v Inigo, 164 AD3d 545 [2018]; CitiMortgage, Inc. v McKinney, 144 AD3d 1073, 1074 [2016]).Moreover, the plaintiff established its prima facie entitlement to judgment as a matter of law byproducing the mortgage, the unpaid note, and evidence of the default in repayment of the loan(see Wells Fargo Bank, N.A. vInigo, 164 AD3d 545 [2018]). In opposition, the appellants failed to raise a triable issueof fact.
Contrary to the appellants' contention, the plaintiff demonstrated the admissibility of thebusiness records upon which its vice president of loan documentation relied in her affidavitsubmitted in support of the motion, under the business records exception to the hearsay rule(see CPLR 4518 [a]; WellsFargo Bank, N.A. v Inigo, 164 AD3d 545 [2018]; Citibank, N.A. v Gentile, 156 AD3d 859, 860 [2017]). Moreover,the plaintiff was not required to give factual details of the delivery of the note in order toestablish that possession was obtained prior to a particular date (see HSBC Bank USA, N.A. v Ozcan,154 AD3d 822, 824 [2017]; PennyMac Corp. v Chavez, 144 AD3d 1006, 1007 [2016]; JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d 643, 645 [2016]). Further, since the plaintiff established that ithad physical possession of the note at the time of commencement of the action, the validity of theassignments of the mortgage was irrelevant to the issue of standing (see Mariners Atl. Portfolio, LLC vHector, 159 AD3d 686, 687-688 [2018]; Silvergate Bank v Calkula Props., Inc., 150 AD3d 1295, 1296[2017]).
In addition, the plaintiff's vice president of loan documentation described in her affidavit theplaintiff's standard business practice with regard to sending RPAPL 1304 90-day notices toborrowers. The affidavit detailed the procedures of electronically recording, printing, and datingthe notices, appending a list of approved housing counseling agencies to them, placing thenotices in properly addressed certified and first-class mailing envelopes, and sealing theenvelopes and delivering them to the United States Postal Service for mailing. The plaintiff alsosubmitted copies of the RPAPL 1304 notices sent to the Heiney defendants and copies of acertified mail receipt and a domestic return receipt. Therefore, the plaintiff tendered sufficientevidence demonstrating the absence of material issues as to its strict compliance with RPAPL1304 (see Nationstar Mtge., LLC vLaPorte, 162 AD3d 784, 786 [2018]; Flagstar Bank, FSB v Mendoza, 139 AD3d 898, 900 [2016]). Inopposition, the appellants failed to raise a triable issue 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 appellants and for an order of reference. Mastro, J.P., Rivera, Duffy and Brathwaite Nelson,JJ., concur.