Opinion
01-25-2017
U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Muthiah SARAVANAN, appellant, et al., defendants.
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Juan Paolo F. Dizon of counsel), for appellant. Ballard Spahr LLP, New York, NY (Justin Angelo of counsel), for respondent.
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Juan Paolo F. Dizon of counsel), for appellant.
Ballard Spahr LLP, New York, NY (Justin Angelo of counsel), for respondent.
RANDALL T. ENG, P.J., RUTH C. BALKIN, SANDRA L. SGROI, and BETSY BARROS, JJ.
In an action to foreclose a mortgage, the defendant Muthiah Saravanan appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Kelly, J.), dated October 17, 2014, as, in effect, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and to appoint a referee to compute the amount due.
ORDERED that the order is affirmed insofar as appealed from, with costs.
To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the note, and evidence of default (see JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 644, 37 N.Y.S.3d 286 ; Federal Natl. Mtge. Assn. v. Yakaputz II, Inc., 141 A.D.3d 506, 35 N.Y.S.3d 236 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1206–1207, 18 N.Y.S.3d 67 ; U.S. Bank N.A. v. Weinman, 123 A.D.3d 1108, 1109, 2 N.Y.S.3d 128 ). In addition, where, as here, standing is placed in issue by a defendant, the plaintiff is required to prove its standing in order to be entitled to relief (see JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d at 644, 37 N.Y.S.3d 286 ; Federal Natl. Mtge. Assn. v. Yakaputz II, Inc., 141 A.D.3d at 506–507, 35 N.Y.S.3d 236; Deutsche Bank Natl. Trust Co. v. Weiss, 133 A.D.3d 704, 705, 21 N.Y.S.3d 126 ). A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). "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, 890 N.Y.S.2d 578 ; see Federal Natl. Mtge. Assn. v. Yakaputz II, Inc., 141 A.D.3d at 507, 35 N.Y.S.3d 236).
Here, the plaintiff established its standing as the holder of the note by demonstrating that the note was in its possession prior to the commencement of the action, as evidenced by its attachment of the endorsed note to the summons and complaint at the time the action was commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d at 645, 37 N.Y.S.3d 286 ; Deutsche Bank Natl. Trust Co. v. Leigh, 137 A.D.3d 841, 842, 28 N.Y.S.3d 86 ; Nationstar Mtge., LLC v. Catizone, 127 A.D.3d 1151, 1152, 9 N.Y.S.3d 315 ). The plaintiff further sustained its burden of demonstrating its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and an affidavit of the loan servicer's assistant vice president establishing the appellant's default in repaying the mortgage loan (see JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d at 645, 37 N.Y.S.3d 286 ; Federal Natl. Mtge. Assn. v. Yakaputz II, Inc., 141 A.D.3d 506, 35 N.Y.S.3d 236 ; Deutsche Bank Natl. Trust Co. v. Naughton, 137 A.D.3d 1199, 1200, 28 N.Y.S.3d 444 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d at 1206–1207, 18 N.Y.S.3d 67 ).
In opposition, the appellant failed to raise a triable issue of fact. As a mortgagor whose loan is owned by a trust, the appellant does not have standing to challenge the plaintiff's possession or status as assignee of the note and mortgage based on purported noncompliance with certain provisions of the relevant pooling and servicing agreement (see Bank of Am. N.A. v. Patino, 128 A.D.3d 994, 995, 9 N.Y.S.3d 656 ; Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176, 1178, 9 N.Y.S.3d 312 ; Bank of N.Y. Mellon v. Gales, 116 A.D.3d 723, 725, 982 N.Y.S.2d 911 ).
Accordingly, the Supreme Court properly, in effect, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellant and to appoint a referee to compute the amount due.