| U.S. Bank N.A. v Echevarria |
| 2019 NY Slip Op 02740 [171 AD3d 979] |
| April 10, 2019 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, Respondent, v MyrtaEchevarria et al., Appellants, et al., Defendants. |
McCallion & Associates LLP, New York, NY (Kenneth F. McCallion of counsel), forappellants.
Shapiro, DiCaro & Barak, LLC, Rochester, NY (Jason P. Dionisio and Austin T.Shufelt of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Myrta Echevarria and Paul Hurley appealfrom an order of the Supreme Court, Suffolk County (Ralph T. Gazzillo, J.), dated August 24,2016. The order, insofar as appealed from, granted those branches of the plaintiff's motion whichwere for summary judgment dismissing those defendants' affirmative defenses alleging lack ofstanding, lack of compliance with RPAPL 1302, 1303 and 1304, and violations of the BankingLaw.
Ordered that the order is affirmed insofar as appealed from, with costs.
In August 2006, the defendant Paul Hurley executed an adjustable rate note in favor ofChevy Chase Bank, F.S.B. (hereinafter Chevy Chase), which was secured by a mortgage that heand the defendant Myrta Echevarria (hereinafter together the defendants) executed, encumberingcertain residential property located in East Hampton. In August 2012, the plaintiff commencedthis action against the defendants and others to foreclose the mortgage. Annexed to the complaintwas a copy of the note, which had been endorsed to the plaintiff. The defendants interposed ananswer with various affirmative defenses, alleging, inter alia, that the plaintiff lacked standing,failed to comply with RPAPL 1302, 1303, and 1304, and violated certain provisions of theBanking Law. Thereafter, the plaintiff moved, inter alia, for summary judgment on thecomplaint. The defendants opposed the motion, but did not raise any arguments in support oftheir affirmative defenses alleging that the plaintiff failed to comply with RPAPL 1302, 1303 and1304, and violated certain provisions of the Banking Law. The Supreme Court, inter alia, grantedthose branches of the plaintiff's motion which were for summary judgment dismissing thedefendants' affirmative defenses alleging that the plaintiff lacked standing, failed to comply withRPAPL 1302, 1303, and 1304, and violated certain provisions of the Banking Law. As for thestatutes governing pleading and notice requirements, the Supreme Court found that the subjectloan did not satisfy the statutory criteria of a "home loan" (RPAPL 1304 [6] [a]), as the subjectproperty was a second home and not the defendants' primary residence. The defendantsappeal.
Where, as here, a defendant raises lack of standing as a defense, the plaintiff bears the burdenof demonstrating its standing (seeNationstar Mtge., LLC v Balducci, 165 AD3d 959, 960 [2018]; Deutsche Bank Trust Co. Ams. vGarrison, 147 AD3d 725, 725 [2017]). A plaintiff establishes its standing to commencea foreclosure action by demonstrating that it is either the holder or assignee of the underlyingnote 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; Deutsche Bank Natl. Trust Co. vLogan, 146 AD3d 861, 862 [2017]). Either a written assignment of the underlying noteor the physical delivery of the note prior to the commencement of the action is sufficient totransfer the obligation, and the mortgage passes with the debt as an inseparable incident (seeAurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362; Deutsche Bank Trust Co. Ams.v Garrison, 147 AD3d at 726; U.S.Bank N.A. v Saravanan, 146 AD3d 1010, 1011 [2017]; U.S. Bank, N.A. v Noble, 144 AD3d786, 786 [2016]).
Contrary to the defendants' contentions, on its motion for summary judgment, the plaintiff,which annexed a copy of the note endorsed to the plaintiff to the complaint at the time the actionwas commenced, established, prima facie, its standing (see Wells Fargo Bank, N.A. v Inigo, 164 AD3d 545, 546 [2018];CitiMortgage, Inc. v McKenzie, 161AD3d 1040, 1041 [2018]; U.S.Bank N.A. v Henry, 157 AD3d 839, 841 [2018]; U.S. Bank N.A. v Saravanan, 146 AD3d 1010 [2017]). Inopposition, the defendants failed to raise a triable issue of fact as to the plaintiff's standing. Thedefendants' contentions regarding the validity of the mortgage assignment are irrelevant (see Silvergate Bank v Calkula Props.,Inc., 150 AD3d 1295, 1296 [2017]; New York Community Bank v McClendon, 138 AD3d 805, 807[2016]). In addition, the defendants' challenge to the note's endorsement is unsupported andwithout merit (see UCC 3-307 [1] [b]; CitiMortgage, Inc. v McKinney, 144 AD3d 1073, 1074 [2016]).Accordingly, we agree with the Supreme Court's grant of that branch of the plaintiffs motionwhich was for summary judgment dismissing the defendants' affirmative defenses alleging lackof standing.
The plaintiff also demonstrated, prima facie, that RPAPL 1302, 1303 and 1304, and formerBanking Law § 6-l, Banking Law §§ 6-m and 595-a wereinapplicable to this action (see former Banking Law § 6-l; Banking Law§§ 6-m [4]; 595-a; Lewis v Wells Fargo Bank, N.A., 134 AD3d 777, 778-779 [2015];Mendel Group, Inc. v Prince, 114AD3d 732, 733 [2014]; HorizonsInvs. Corp. v Brecevich, 104 AD3d 475, 475 [2013]; Pritchard v Curtis, 101 AD3d 1502, 1504 n 1 [2012]; Emigrant Mtge. Co., Inc. v Fitzpatrick,95 AD3d 1169, 1171 [2012]). The defendants, who did not oppose those branches of theplaintiff's motion which were for summary judgment dismissing the affirmative defenses allegingfailure to comply with, or violation of, these statutes, failed to raise a triable issue of fact (see Deutsche Bank Natl. Trust Co. vNaughton, 137 AD3d 1199, 1200 [2016]; Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841, 842[2015]). Accordingly, we agree with the Supreme Court's grant of those branches of the plaintiff'smotion. Mastro, J.P., LaSalle, Barros and Connolly, JJ., concur.