Opinion
04-04-2017
WILMINGTON TRUST COMPANY, as Successor Trustee to Bank of America National Association, etc., Plaintiff–Respondent, v. Audrey WALKER, et al., Defendants–Appellants, Bank of America, N.A., et al., Defendants.
Law Office of Peter A. Hurwitz, PLLC, New City (Peter A. Hurwitz of counsel), for appellants. Hogan Lovells U.S. LLP, New York (Heather R. Gushue of counsel), for respondent.
Law Office of Peter A. Hurwitz, PLLC, New City (Peter A. Hurwitz of counsel), for appellants.
Hogan Lovells U.S. LLP, New York (Heather R. Gushue of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, MOSKOWITZ, GISCHE, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered September 21, 2015, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment in this mortgage foreclosure action, unanimously affirmed, without costs.
Defendants Audrey Walker and Dawn Walker are individuals who executed a mortgage and corresponding promissory note in connection with a residential property located in Bronx County. On appeal, they argue that plaintiff, the trustee of a Trust which holds their mortgage, does not have standing to bring this action.
Plaintiff has standing in this residential mortgage foreclosure action, as it provided prima facie evidence that it was the assignee of the subject mortgage, and the holder and assignee of the underlying note at the time this action was commenced in September 2009 (OneWest Bank FSB v. Carey, 104 A.D.3d 444, 445, 960 N.Y.S.2d 306 [1st Dept.2013] ; Bank of N.Y. Mellon Trust Co. NA v. Sachar, 95 A.D.3d 695, 695–696, 943 N.Y.S.2d 893 [1st Dept.2012] ). Plaintiff submitted a pooling and servicing agreement which shows that both the mortgage and the note were assigned to the Trust in June 2007.
In addition, plaintiff submitted the affidavit of the Vice President for Loan Documentation for the Trust's Servicer, who attested that, on July 1, 2009, the original note was physically delivered to plaintiff's attorneys, and that they retained this note at the time of commencement. These statements are sufficient to show that plaintiff had physical possession of the note prior to commencement of this action (see Wells Fargo Bank, N.A. v. Jones, 139 A.D.3d 520, 523–524, 32 N.Y.S.3d 95 [1st Dept.2016] ; U.S. Bank N.A. v. Askew, 138 A.D.3d 402, 402, 27 N.Y.S.3d 856 [1st Dept.2016] ; Deutsche Bank Natl. Trust Co. v. Idarecis, 133 A.D.3d 702, 703, 21 N.Y.S.3d 261 [2d Dept.2015] ).
The individual defendants' argument that plaintiff violated a rule promulgated by Chief Judge Lippman (Administrative Order of the Chief Administrative Judge of the Courts 548/2010, dated October 20, 2010) by not submitting an attorney affirmation certifying that the residential mortgage documents were complete and accurate is unavailing. Administrative Order 548/2010 was amended in March 2011 by Administrative Order 431/2011, which provided that, in pending cases, such affirmation could be submitted along with the proposed judgment of foreclosure. Here, as the proposed judgment of foreclosure had not been submitted to the trial court as of the date of the trial court's decision, there is no violation.