Opinion
No. 2023-00119 Index No. 17597/12
12-24-2024
Bayview Loan Servicing, LLC, respondent, v. Moshe Ashkenazi, appellant, et al., defendants.
Gutman Weiss, P.C., Brooklyn, NY (Yakov Medinets and Marc Illish of counsel), for appellant. Houser LLP, New York, NY (Zachary A. Victor and Kathleen M. Massimo of counsel), for respondent.
Gutman Weiss, P.C., Brooklyn, NY (Yakov Medinets and Marc Illish of counsel), for appellant.
Houser LLP, New York, NY (Zachary A. Victor and Kathleen M. Massimo of counsel), for respondent.
BETSY BARROS, J.P. WILLIAM G. FORD HELEN VOUTSINAS CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Moshe Ashkenazi appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated November 16, 2022. The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
JPMorgan Chase Bank, National Association (hereinafter JPMorgan), as successor by merger to Washington Mutual Bank, FA (hereinafter Washington Mutual), commenced this action to foreclose a mortgage given by the defendant Moshe Ashkenazi (hereinafter the defendant), encumbering certain real property located in Brooklyn. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him, contending, among other things, that dismissal was warranted pursuant to CPLR 3211(a)(3) and (8). The Supreme Court, inter alia, denied that branch of the defendant's motion. The defendant appeals.
"A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground... that the court has not jurisdiction of the person of the defendant" (CPLR 3211[a][8]). "The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over a defendant was obtained" (U.S. Bank, N.A. v Peralta, 142 A.D.3d 988, 988).
Here, the Supreme Court properly denied dismissal of the complaint insofar as asserted against the defendant pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction (see Deutsche Bank Natl. Trust Co. v Moses, 223 A.D.3d 784, 785; City of New York v Miller, 72 A.D.3d 726, 727). The affidavits of the process server attesting that service was effectuated upon the defendant by delivery of a copy of the summons and complaint to a person of suitable age and discretion at the subject premises and by mailing a copy of the summons and complaint to the defendant to that same address constituted prima facie evidence of proper service pursuant to CPLR 308(2) (see U.S. Bank Trust, N.A. v Catalano, 215 A.D.3d 992, 994). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" (City of New York v Miller, 72 A.D.3d at 727). Here, "the defendant never denied the specific facts contained in the process server's affidavits" (Tikvah Enters., LLC v Neuman, 80 A.D.3d 748, 749; see U.S. Bank, N.A. v Knight, 227 A.D.3d 1035, 1036; U.S. Bank Trust, N.A. v Catalano, 215 A.D.3d at 994).
"A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced" (JPMorgan Chase Bank, N.A. v Newton, 203 A.D.3d 902, 904-905 [internal quotation marks omitted]; see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 361). "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" (U.S. Bank, N.A. v Collymore, 68 A.D.3d 752, 754; see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d at 361-362; JPMorgan Chase Bank, N.A. v Newton, 203 A.D.3d at 904-905).
Here, the plaintiff established JPMorgan's standing by demonstrating that a copy of the note, endorsed in blank, was attached to the complaint (see JPMorgan Chase Bank, N.A. v Newton, 203 A.D.3d at 905; U.S. Bank N.A. v Dorns, 193 A.D.3d 903, 905). Additionally, the plaintiff "submitted evidence establishing that, in 2008, after Washington Mutual had entered receivership with the [Federal Deposit Insurance Corporation], JPMorgan and the [Federal Deposit Insurance Corporation] entered into a purchase and assumption agreement pursuant to which JPMorgan acquired all of Washington Mutual's loans and loan commitments" (Wilmington Sav. Fund Socy., FSB v Finn, 170 A.D.3d 1246, 1248-1249; see JP Morgan Chase Bank, N.A. v Atedgi, 162 A.D.3d 756, 757-758; Wells Fargo Bank, NA v Fortmeyer, 154 A.D.3d 998, 999; JP Morgan Chase Bank, N.A. v Schott, 130 A.D.3d 875, 875). "Since JPMorgan acquired the subject loan pursuant to the purchase and assumption agreement as of September 25, 2008, which was prior to the commencement of this action in [August 2012], [the plaintiff] established [JPMorgan's] standing to maintain the action" (Wilmington Sav. Fund Socy., FSB v Finn, 170 A.D.3d at 1248; see Wilmington Sav. Fund Socy., FSB v Kutch, 202 A.D.3d 1030, 1034; JP Morgan Chase Bank, N.A. v Atedgi, 162 A.D.3d at 757-758). Furthermore, the postcommencement transfer of the note and mortgage to the plaintiff did not divest JPMorgan of its standing (see CPLR 1018; JPMorgan Chase Bank, N.A. v Esparza, 213 A.D.3d 655, 657; JPMorgan Chase Bank, N.A. v Fischer, 194 A.D.3d 1031, 1032; Wilmington Sav. Fund Socy., FSB v Finn, 170 A.D.3d at 1248).
Accordingly, the Supreme Court properly denied dismissal of the complaint insofar as asserted against the defendant pursuant to CPLR 3211(a)(3).
BARROS, J.P., FORD, VOUTSINAS and LANDICINO, JJ., concur.