Opinion
7022 Index 38221/10
06-28-2018
US BANK NATIONAL ASSOCIATION, etc., Plaintiff–Appellant, v. Anthony EZUGWU, Defendant–Respondent, New York City Environmental Control Board, et al., Defendants.
Hogan Lovells U.S. LLP, New York (Ryan Sirianni of counsel), for appellant. Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel), for respondent.
Hogan Lovells U.S. LLP, New York (Ryan Sirianni of counsel), for appellant.
Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel), for respondent.
Friedman, J.P., Tom, Mazzarelli, Singh, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about July 7, 2017, which, to the extent appealed from, denied plaintiff's renewed motion for summary judgment on the complaint as against defendant Anthony Ezugwu, and to dismiss Ezugwu's affirmative defenses counterclaims, unanimously reversed, on the law, without costs, and the motion granted.
In this action to foreclose on a note and mortgage, plaintiff, U.S. Bank National Association ("USBNA"), as trustee of a trust consisting of investment instruments (mortgage-backed securities), established standing to commence this foreclosure action and, hence, the legal insufficiency of Ezugwu's affirmative defense of lack of standing. The affidavit of a loan documentation officer employed by the loan-originating bank ("Wells Fargo") avers that Wells Fargo, while always in possession of Ezugwu's loan documents, ultimately served as a servicer and custodial holder of loan documents under the terms of a 2006 pooling and servicing agreement ("PSA"), and that Wells Fargo transferred the note into the possession of USBNA, as trustee of the PSA, prior to the commencement of the instant foreclosure action, as corroborated by documents including the note, mortgage and PSA that contained, inter alia, a mortgage loan schedule and custodial activity sheet for Ezugwu's loan documents (see generally Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ).
To the extent USBNA also argues that its standing can be separately demonstrated by the terms of the PSA, which indicates an assignment of the "loan" (and its documents) from Wells Fargo to the trust, we agree under the circumstances herein (see Wilmington Tr. Co. v. Walker, 149 A.D.3d 409, 51 N.Y.S.3d 64 [1st Dept. 2017] ).
USBNA is also entitled to dismissal of Ezugwu's remaining affirmative defenses and counterclaims, which, as pleaded, are legally insufficient and not pursued on appeal.