Opinion
2016–05466 Index No. 3344/13
05-22-2019
WELLS FARGO BANK NATIONAL ASSOCIATION, etc., Respondent, v. Nicole JOHNSON, Appellant, et al., Defendants.
Nicole Johnson–Gellineau, named herein as Nicole Johnson, Beacon, NY, appellant pro se. Buckley Madole, P.C., New York, N.Y. (Brian P. Scibetta of counsel), for respondent.
Nicole Johnson–Gellineau, named herein as Nicole Johnson, Beacon, NY, appellant pro se.
Buckley Madole, P.C., New York, N.Y. (Brian P. Scibetta of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Nicole Johnson appeals from a judgment of foreclosure and sale of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated April 18, 2016. The judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court dated July 15, 2015, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Nicole Johnson and for an order of reference, directed the sale of the subject premises.
ORDERED that the judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage given by the defendant Nicole Johnson (hereinafter the defendant). In her answer to the complaint, the defendant asserted various affirmative defenses, including lack of standing. After the matter was released from the foreclosure settlement conference part, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The Supreme Court, by order dated July 15, 2015, granted the motion. The defendant appeals from the judgment of foreclosure and sale entered upon that order.
"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" ( U.S. Bank N.A. v. Sabloff, 153 A.D.3d 879, 880, 60 N.Y.S.3d 343 ; see Bank of Am., N.A. v. DeNardo, 151 A.D.3d 1008, 58 N.Y.S.3d 469 ). Where, as here, the plaintiff's standing is placed in issue by a defendant, the plaintiff also must prove its standing as part of its prima facie showing (see Wells Fargo Bank, N.A. v. Lewczuk, 153 A.D.3d 890, 61 N.Y.S.3d 244 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 ). A plaintiff establishes its 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 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 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" ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578 ; see Deutsche Bank Natl. Trust Co. v. Weiss, 133 A.D.3d 704, 705, 21 N.Y.S.3d 126 ; Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 650, 981 N.Y.S.2d 547 ).
Here, the plaintiff demonstrated, prima facie, that it was the holder of the note at the time the action was commenced, as evidenced by its attachment of the note, endorsed in blank, to the summons and complaint at the time the action was commenced (see U.S. Bank N.A. v. Henry, 157 A.D.3d 839, 69 N.Y.S.3d 656 ; U.S. Bank N.A. v. Sabloff, 153 A.D.3d 879, 60 N.Y.S.3d 343 ; Deutsche Bank Natl. Trust Co. v. Carlin, 152 A.D.3d 491, 61 N.Y.S.3d 16 ). Contrary to the defendant's contention, there is no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it (see UCC 3–204 [2] ; U.S. Bank N.A. v. Henry, 157 A.D.3d at 841, 69 N.Y.S.3d 656 ; Deutsche Bank Natl. Trust Co. v. Carlin, 152 A.D.3d at 493, 61 N.Y.S.3d 16 ; Wells Fargo Bank, N.A. v. Thomas, 150 A.D.3d 1312, 1313, 52 N.Y.S.3d 894 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ). Further, where the note is affixed to the complaint, "it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date" ( JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d at 645, 37 N.Y.S.3d 286 ; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; U.S. Bank N.A. v. Henry, 157 A.D.3d at 841, 69 N.Y.S.3d 656 ; Wells Fargo Bank, N.A. v. Thomas, 150 A.D.3d at 1313, 52 N.Y.S.3d 894 ). In addition, the plaintiff established its standing by virtue of a written assignment of the underlying note prior to the commencement of the action (see U.S. Bank N.A. v. Ezugwu, 162 A.D.3d 613, 80 N.Y.S.3d 35 ; Wilmington Trust Co. v. Walker, 149 A.D.3d 409, 51 N.Y.S.3d 64 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578 ; cf. Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 685, 37 N.Y.S.3d 25 ). In opposition, the defendant failed to raise a triable issue of fact as to the plaintiff's standing.
The plaintiff also demonstrated its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and the affidavit of Yolanda Gardner, an employee of JPMorgan Chase Bank, N.A., loan servicer for the plaintiff, attesting to the default in payment (see Bank of N.Y. Mellon v. Lopes , 158 A.D.3d 662, 71 N.Y.S.3d 147 ; Wells Fargo Bank, N.A. v. Thomas , 150 A.D.3d 1312, 52 N.Y.S.3d 894 ; Citigroup v. Kopelowitz , 147 A.D.3d 1014, 48 N.Y.S.3d 223 ; U.S. Bank N.A. v. Singer , 145 A.D.3d 1057, 44 N.Y.S.3d 472 ). Contrary to the defendant's contention, the business records upon which Gardner relied were admissible under the business records exception to the hearsay rule (see CPLR 4518[a] ; People v. Cratsley , 86 N.Y.2d 81, 90, 629 N.Y.S.2d 992, 653 N.E.2d 1162 ). In opposition, the defendant failed to raise a triable issue of fact.
The defendant's contention that the plaintiff failed to demonstrate compliance with the condition precedent contained in paragraph 22 of the mortgage requiring that it provide her with notice of default prior to demanding payment of the loan in full is without merit.
Accordingly, we agree with the Supreme Court's determination granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.
MASTRO, J.P., COHEN, MALTESE and LASALLE, JJ., concur.