Deutsche Bank Nat'l Trust Co. v. Cardona

172 A.D.3d 1313

99 N.Y.S.3d 668 (Mem)

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent,

v.John A. CARDONA, Appellant, et al., Defendants.

2017–00096

Index No. 62853/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 31, 2019

May 29, 2019

Tirelli & Wallshein, PLLC, Melville, N.Y. (Charles Wallshein of counsel), for appellant.

Leopold & Associates, PLLC (Greenberg Traurig, LLP, New York, N.Y. [Marissa Banez ], of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2003, the defendant John A. Cardona (hereinafter the defendant) executed a note in the sum of $ 430,000 in favor of nonparty Argent Mortgage Company for a loan that was secured by a mortgage on real property located in Aquebogue, Suffolk County. On or about April 21, 2014, the plaintiff commenced this mortgage foreclosure action, alleging that the defendant had defaulted on payment obligations of the note. The note, which was endorsed in blank, was annexed to the complaint. The defendant interposed various affirmative defenses in his answer, alleging, among other things, that the plaintiff lacked standing to commence the action.

The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer and affirmative defenses, and for an order of reference. The defendant cross-moved, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against him for lack of standing and to compel discovery. The Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied those branches of the defendant's cross motion.

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, to strike the defendant's answer and affirmative defenses, and for an order of reference. 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 (see Deutsche Bank Natl. Trust Co. v. Logan , 146 A.D.3d 861, 862, 45 N.Y.S.3d 189 ; Aurora Loan Servs., LLC v. Mercius , 138 A.D.3d 650, 651, 29 N.Y.S.3d 462 ; Plaza Equities, LLC v. Lamberti , 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). Where, as in this case, the plaintiff's standing has been placed in issue by reason of the defendant's answer, the plaintiff additionally must prove its standing as part of its prima facie showing (see Wells Fargo Bank, N.A. v. Rooney , 132 A.D.3d 980, 981, 19 N.Y.S.3d 543 ; HSBC Bank USA, N.A. v. Baptiste , 128 A.D.3d 773, 774, 10 N.Y.S.3d 255 ). "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" ( Deutsche Bank Natl. Trust Co. v. Brewton , 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ; 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" ( Dyer Trust 2012–1 v. Global World Realty, Inc. , 140 A.D.3d 827, 828, 33 N.Y.S.3d 414 ; see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d 643, 644–645 ).

Here, the plaintiff established, prima facie, that it had standing by demonstrating that it had physical possession of the note prior to the commencement of the action, as evidenced by its attachment of the note, which was endorsed in blank, to the summons and complaint at the time the action was commenced (see Bank of N.Y. Mellon v. Adam Plotch, LLC , 162 A.D.3d 502, 502, 79 N.Y.S.3d 135 ; Bank of Am., N.A. v. Wheatley , 158 A.D.3d 736, 737, 73 N.Y.S.3d 88 ; Deutsche Bank Natl. Trust Co. v. Logan , 146 A.D.3d at 862–863, 45 N.Y.S.3d 189 ; 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 ; Emigrant Bank v. Larizza , 129 A.D.3d 904, 905, 13...