Summary
holding plaintiff had foreclosure standing via physical possession of note without analyzing rights of entity that conveyed note or indorsements on note
Summary of this case from Hilton v. U.S. Bank for the Structured Asset Sec. Corp. Mortg. Pass (In re Hilton)Opinion
2014-00891, Index No. 962/10.
10-21-2015
NATIONSTAR MORTGAGE, LLC, appellant, v. William WONG, et al., defendants.
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), for appellant.
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), for appellant.
RANDALL T. ENG, P.J., CHERYL E. CHAMBERS, SHERI S. ROMAN, and BETSY BARROS, JJ.
Opinion In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Taylor, J.), entered December 11, 2013, which denied its unopposed motion for summary judgment on the complaint, an order of reference, and leave to amend the caption, and which, sua sponte, in effect, directed the dismissal of the complaint insofar as asserted against the defendant William Wong.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, in effect, directed the dismissal of the complaint insofar as asserted against the defendant William Wong is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements, and the plaintiff's motion for summary judgment on the complaint, an order of reference, and leave to amend the caption is granted.
The Supreme Court improperly, sua sponte, directed the dismissal of the complaint insofar as asserted against the defendant William Wong on the ground that the plaintiff lacked standing. “ ‘A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ ” (Onewest Bank, FSB v. Prince, 130 A.D.3d 700, 701, 14 N.Y.S.3d 66, quoting U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921 N.Y.S.2d 320 ; see U.S. Bank N.A. v. Polanco, 126 A.D.3d 883, 7 N.Y.S.3d 156 ; Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 7 N.Y.S.3d 147 ; Bank of N.Y. v. Castillo, 120 A.D.3d 598, 991 N.Y.S.2d 446 ). Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint (see HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d 930, 932, 5 N.Y.S.3d 175 ; Onewest Bank, FSB v. Fernandez, 112 A.D.3d 681, 682, 976 N.Y.S.2d 405 ). Moreover, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court (see HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d at 932, 5 N.Y.S.3d 175 ; Wells Fargo Bank, N.A. v. Gioia, 114 A.D.3d 766, 767, 980 N.Y.S.2d 535 ; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 817, 962 N.Y.S.2d 301 ; Bank of N.Y. v. Alderazi, 99 A.D.3d 837, 838, 951 N.Y.S.2d 900 ; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d at 1048, 921 N.Y.S.2d 320 ).
Moreover, the Supreme Court erred in denying the plaintiff's unopposed motion for summary judgment on the complaint, an order of reference, and leave to amend the caption. A plaintiff seeking to establish prima facie entitlement to judgment as a matter of law in a residential mortgage foreclosure action must produce the mortgage, the unpaid note, and evidence of the default (see Wells Fargo Bank, N.A. v. Ali, 122 A.D.3d 726, 726, 995 N.Y.S.2d 735 ; W & H Equities LLC v. Odums, 113 A.D.3d 840, 841, 978 N.Y.S.2d 910 ; Washington Mut. Bank v. Schenk, 112 A.D.3d 615, 616, 975 N.Y.S.2d 902 ; Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 877 N.Y.S.2d 200 ). Where, as here, the plaintiff's standing has been placed in issue by a defendant's answer, the plaintiff also must prove its standing as part of its prima facie showing (see HSBC Bank USA, N.A., 128 A.D.3d 773, 10 N.Y.S.3d 255 ). In a foreclosure action, a plaintiff has standing if it is either the holder of, or the assignee of, the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 980 N.Y.S.2d 475, affd. 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ).
Contrary to the plaintiff's contention, Wong raised the issue of the plaintiff's standing by interposing an answer which, in effect, denied the plaintiff's allegation that it was the holder of the note (see CPLR 3018 ; Bank of Am., N.A. v. Paulsen, 125 A.D.3d 909, 910, 6 N.Y.S.3d 68 ; U.S. Bank N.A. v. Faruque, 120 A.D.3d 575, 576, 991 N.Y.S.2d 630 ). Further, contrary to the Supreme Court's determination, the plaintiff established its standing to commence the action. The affidavit of the plaintiff's assistant secretary was sufficient to establish, prima facie, that the mortgage and note were physically delivered to the plaintiff prior to commencement of the action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). Moreover, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of Wong's default (see W & H Equities, LLC v. Odums, 113 A.D.3d at 841, 978 N.Y.S.2d 910 ).
Since no opposition to the motion was submitted by the defendants, they failed to raise a triable issue of fact (see Onewest Bank, FSB v. Prince, 130 A.D.3d 700, 702, 14 N.Y.S.3d 66 ; Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 843, 7 N.Y.S.3d 147 ; Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 1045, 943 N.Y.S.2d 551 ). Accordingly, the Supreme Court should have granted the plaintiff's unopposed motion for summary judgment on the complaint, an order of reference, and leave to amend the caption.