Opinion
02-24-2015
U.S. BANK, N.A., etc., Index Plaintiff–Appellant, v. Silvio BERNABEL, et al., Defendants–Respondents, Mortgage Electronic Registration Systems, Inc., etc., et al., Defendants.
Locke Lord LLP, New York (R. James De Rose, III of counsel), for appellant. David J. Broderick, P.C., Forest Hills (David J. Broderick of counsel), for respondents.
Locke Lord LLP, New York (R. James De Rose, III of counsel), for appellant.
David J. Broderick, P.C., Forest Hills (David J. Broderick of counsel), for respondents.
TOM, J.P., RENWICK, ANDRIAS, RICHTER, GISCHE, JJ.
Opinion Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 26, 2012, which granted the Bernabel defendants motion to, among other things, vacate a judgment of foreclosure and sale entered in plaintiff's favor on January 12, 2011, unanimously reversed, on the law, without costs, the motion denied, and the judgment of foreclosure and sale reinstated. The Clerk is directed to enter judgment accordingly.
There was no basis for vacatur of the judgment of foreclosure and sale. By defaulting in this mortgage foreclosure action, defendants waived any argument that plaintiff lacked standing to commence the action (see Wells Fargo Bank, NA v. Edwards, 95 A.D.3d 692, 692, 945 N.Y.S.2d 44 [1st Dept.2012] ; see also Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 278–279, 820 N.Y.S.2d 2 [1st Dept.2006], appeal dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] ). In any event, plaintiff established its standing by showing that it was both the holder and assignee of the subject mortgage and the underlying note at the time of the commencement of the action (see Bank of N.Y. Mellon Trust Co. NA v. Sachar, 95 A.D.3d 695, 695, 943 N.Y.S.2d 893 [1st Dept.2012] ). That the note was indorsed in blank is no impediment to plaintiff's enforcement of the note as the holder (see e.g. Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d 674, 674, 838 N.Y.S.2d 622 [2d Dept.2007] ; see also former N.Y. UCC 1–201[20] ). Plaintiff also established a prima facie right to foreclosure by producing the note and mortgage, as well as affidavits from its servicing agent showing that defendants failed to make a monthly payment in November 2007, thereby causing the entire loan to accelerate (see Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1 [1st Dept.2007], lv. dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008], lv. denied 13 N.Y.3d 709, 2009 WL 3349931 [2009] ). Contrary to defendants' contention, plaintiff complied with Administrative Order 548–10 of the Chief Administrative Judge.