Opinion
2016–07068 Index No. 4900/12
01-15-2020
WELLS FARGO BANK, N.A., Respondent, v. Kenneth M. ELSMAN, Appellant, et al., Defendants.
Kenneth Elsman, Baldwin, NY, appellant pro se.
Kenneth Elsman, Baldwin, NY, appellant pro se.
MARK C. DILLON, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant Kenneth M. Elsman and for an order of reference is denied, the plaintiff's motion for a judgment of foreclosure and sale is denied, and the order entered January 15, 2015, is modified accordingly.
The plaintiff, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), commenced this action to foreclose a mortgage against, among others, the defendant Kenneth M. Elsman (hereinafter the defendant), in 2012. The mortgage at issue secured a note of $468,900 with property located in Baldwin. In his answer, the defendant, inter alia, alleged lack of standing as an affirmative defense.
By notice of motion dated May 1, 2014, Wells Fargo moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order entered January 15, 2015, the Supreme Court granted Wells Fargo's motion.
By notice of motion dated September 16, 2015, Wells Fargo moved for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered May 3, 2016, the Supreme Court, inter alia, granted the motion for a judgment of foreclosure and sale, confirmed the report of the referee, and directed the sale of the subject premises. The defendant appeals.
"[I]n order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default" ( Zarabi v. Movahedian, 136 A.D.3d 895, 895–896, 26 N.Y.S.3d 153 ). Where, as here, the plaintiff's standing to commence the action is placed in issue by a defendant, the plaintiff must establish its standing to be entitled to relief (see U.S. Bank N.A. v. Godwin, 137 A.D.3d 1260, 1261, 28 N.Y.S.3d 450 ). A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d 827, 828, 33 N.Y.S.3d 414 ).
Here, Wells Fargo failed to establish, prima facie, that it had possession of the note prior to the commencement of the action, and thus failed to establish that it had standing to foreclose the mortgage (see U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ; see also Deutsche Bank Natl. Trust Co. v. Barnett, 88 A.D.3d 636, 638, 931 N.Y.S.2d 630 ; cf. Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). Wells Fargo did not attach a copy of the note and allonge to the complaint when the action was commenced to establish, prima facie, that it had possession of the note at that time (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; cf. JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d 286 ). Moreover, the affidavit of Wells Fargo's vice president of loan documentation was insufficient to establish that Wells Fargo possessed the note at the time the action was commenced (cf. Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). Therefore, the Supreme Court should have denied Wells Fargo's motion for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.
The defendant's remaining contentions are academic in view of the foregoing.
DILLON, J.P., MALTESE, DUFFY and BARROS, JJ., concur.