Opinion
03-30-2016
BANK OF AMERICA, N.A., respondent, v. Edward J. O'GORMAN, et al., appellants, et al., defendants.
Edward J. O'Gorman, Pawling, N.Y., appellant pro se and for appellant Deborah A. O'Gorman. Fein, Such & Crane, LLP, Westbury, N.Y. (Michael Hanusek of counsel), for respondent.
Edward J. O'Gorman, Pawling, N.Y., appellant pro se and for appellant Deborah A. O'Gorman.
Fein, Such & Crane, LLP, Westbury, N.Y. (Michael Hanusek of counsel), for respondent.
Opinion
In an action to foreclose a mortgage, the defendants Edward J. O'Gorman and Deborah A. O'Gorman appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated March 19, 2015, which granted the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference.
ORDERED that the order is affirmed, with costs.
1 The plaintiff's standing to prosecute this action was placed in issue by the appellants in their answer (see Wells Fargo Bank, N.A. v. Charlaff, 134 A.D.3d 1099, 1099, 24 N.Y.S.3d 317; Deutsche Bank Natl. Trust. Co. v. Idarecis, 133 A.D.3d 702, 21 N.Y.S.3d 261). Therefore, the plaintiff had the burden of proving its standing “as part of its prima facie showing on [its] motion for summary judgment” (Deutsche Bank Natl. Trust. Co. v. Idarecis, 133 A.D.3d at 703, 21 N.Y.S.3d 261; see Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 19 N.Y.S.3d 543). On appeal, the appellants contend that the plaintiff failed to establish standing to maintain this action.
In an action to foreclose a mortgage, a plaintiff has standing if it is the holder or assignee of the underlying note when the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363; HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 939 N.Y.S.2d 120; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609). “ ‘Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the ... action is sufficient to transfer the obligation’ ” (HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 939 N.Y.S.2d 120, quoting U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578; see Wells Fargo Bank, N.A. v. Charlaff, 134 A.D.3d 1099, 24 N.Y.S.3d 317; Citimortgage, Inc. v. Goldberg, 134 A.D.3d 880, 20 N.Y.S.3d 906). The mortgage passes with the debt as an inseparable incident (see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d at 109, 923 N.Y.S.2d 609, citing U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578).
Here, the plaintiff's submissions established that an entity known as “Countrywide Home Loans Servicing, LP” (hereinafter Countrywide LP), had acquired physical possession of the subject promissory note at some point in time prior to July 1, 2008, coincident with the endorsement of the note, by a prior holder, to another entity known as “Countrywide Home Loans, Inc.” The plaintiff's submissions also demonstrated that Countrywide LP “at all times maintained physical possession of the original [promissory] [n]ote,” that Countrywide LP was later renamed “BAC Home Loans Servicing LP,” and that this newly named limited partnership then merged into the plaintiff, effective July 1, 2011, prior to the commencement of the action on November 29, 2012. Contrary to the appellants' contentions, the plaintiff's submissions were sufficient to make a prima facie showing of standing by virtue of its pre-commencement physical possession of the note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363, affg. 114 A.D.3d 627, 980 N.Y.S.2d 475; see also Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 19 N.Y.S.3d 543; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 18 N.Y.S.3d 67; Nationstar Mtge., LLC v. Catizone, 127 A.D.3d 1151, 9 N.Y.S.3d 315; Wells Fargo Bank, N.A. v. Parker, 125 A.D.3d 848, 5 N.Y.S.3d 130; Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 981 N.Y.S.2d 547; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 969 N.Y.S.2d 82; cf. Deutsche Bank Natl. Trust Co. v. Idarecis, 133 A.D.3d 702, 21 N.Y.S.3d 261).
In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law, the appellants failed to raise a triable issue of fact, and the appellants' remaining contentions are without merit. Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference.