Opinion
10-04-2017
WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee holders of the First Franklin Mortgage Loan Trust 2006–FF 15 Mortgage Pass–Through Certificates, Series 2006–FF 15, respondent, v. Demetra ALLEN, appellant, et al., defendants.
David A. Bythewood, Mineola, NY, for appellant. Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Kenneth J. Flickinger of counsel), for respondent.
David A. Bythewood, Mineola, NY, for appellant.
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Kenneth J. Flickinger of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
In an action to foreclose a mortgage, the defendant Demetra Allen appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Dufficy, J.), entered October 13, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against her, to strike her answer, and to refer the matter to a referee to ascertain and compute the amount due.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellant, to strike her answer, and to refer the matter to a referee to ascertain and compute the amount due are denied, and the determination in an order of the same court dated March 4, 2013, granting those branches of the plaintiff's motion, is vacated.
"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" ( Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Genuth, 148 A.D.3d 687, 48 N.Y.S.3d 706 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ). Where, however, a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 46 N.Y.S.3d 185 ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 973–974, 995 N.Y.S.2d 118 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25). Either a written assignment of the underlying note or the physical delivery of the note is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d at 725, 46 N.Y.S.3d 185; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ).
Here, the plaintiff failed to establish, prima facie, that it had standing to commence this action. The copy of the note, which was not annexed to the complaint but was submitted by the plaintiff in support of its motion, inter alia, for summary judgment, contained an undated endorsement to the plaintiff (see Deutsche Bank Natl. Trust Co. v. Cunningham, 142 A.D.3d 634, 635–636, 36 N.Y.S.3d 726 ; Deutsche Bank Natl. Trust Co. v. Weiss, 133 A.D.3d 704, 705–706, 21 N.Y.S.3d 126 ; Flagstar Bank, FSB v. Anderson, 129 A.D.3d 665, 666, 12 N.Y.S.3d 118 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578 ). Furthermore, although the document control officer of the plaintiff's loan servicer stated in his affidavit that the plaintiff was the holder of the note, he never stated that the plaintiff was the holder of the note at the time the action was commenced (see Deutsche Bank Natl. Trust Co. v. Cunningham, 142 A.D.3d at 635–636, 36 N.Y.S.3d 726; Deutsche Bank Natl. Trust Co. v. Weiss, 133 A.D.3d at 705–706, 21 N.Y.S.3d 126 ).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Demetra Allen, to strike her answer, and to refer the matter to a referee to ascertain and compute the amount due.