HSBC Bank USA, Nat'l Ass'n v. Boursiquot

204 A.D.3d 980

167 N.Y.S.3d 524

HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent,

v.Denise BOURSIQUOT, appellant.

2019–09068

Index No. 6450/10

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

Argued—February 8, 2022

April 27, 2022

Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Joseph Jacobson of counsel), for appellant.

Stradley Ronon Stevens & Young, LLP, New York, NY (Matthew B. Johnson and Jacqueline M. Aiello of counsel), for respondent.

MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Queens County (Sally Unger, J.), entered December 17, 2018. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the defendant's answer, and to appoint a referee to ascertain and compute the amount due and owing to the plaintiff.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the defendant's answer, and to appoint a referee to ascertain and compute the amount due and owing to the plaintiff are denied.

In April 2006, the defendant executed a note in the sum of $386,000 in favor of nonparty Fremont Investment & Loan (hereinafter Fremont). The note was secured by a mortgage on real property in Queens County. In or about March 2010, the plaintiff commenced this action to foreclose the mortgage. The defendant interposed an answer asserting various affirmative defenses, including lack of standing, and failure to serve a notice of default in accordance with the terms of the mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint, to strike the defendant's answer, and to appoint a referee to compute the amount due and owing to the plaintiff. The defendant opposed the motion. In an order entered December 17, 2018, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the defendant's answer, and to appoint a referee to compute the amount due and owing to the plaintiff. The defendant appeals.

Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Capital One, N.A. v. Liman, 193 A.D.3d 808, 809, 142 N.Y.S.3d 411 ; Deutsche Bank Natl. Trust Co. v. Bowens, 181 A.D.3d 871, 873, 121 N.Y.S.3d 327 ). Where, as here, the plaintiff's standing to commence the foreclosure action is placed in issue by a defendant, the plaintiff is required to prove its standing as part of its prima facie showing on its motion for summary judgment (see Deutsche Bank Natl. Trust Co. v. Schmelzinger, 189 A.D.3d 1173, 1174, 138 N.Y.S.3d 540 ; U.S. Bank N.A. v. 22 S. Madison, LLC, 170 A.D.3d 772, 773, 95 N.Y.S.3d 264 ; US Bank, N.A. v. Ballin, 158 A.D.3d 786, 787, 72 N.Y.S.3d 110 ). A plaintiff establishes its standing to maintain a mortgage foreclosure action by demonstrating that 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, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Schmelzinger, 189 A.D.3d at 1174, 138 N.Y.S.3d 540 ). The plaintiff meets this burden with proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to the commencement of the foreclosure action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 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 ; UCC 1–201[b][21][A] ; 3–202[1]; 3–204).

Here, the plaintiff failed to establish, prima facie, that it had standing to commence this action. In support of its motion, the plaintiff asserted that it was the holder of the note at the time the action was commenced. However, the plaintiff failed to present admissible evidence establishing that it was in possession of the note, endorsed in blank or specially to it, at the time the action was commenced in or about March 2010. The plaintiff relied upon the affidavit of Nichelle Jones, a senior loan analyst of Ocwen Financial Corporation whose indirect subsidiary is Ocwen Loan Services, LLC (hereinafter Ocwen), the plaintiff's loan servicer. Jones attested that she reviewed the servicing records maintained by Ocwen in its ordinary course of business, that a prior servicer's records were integrated into Ocwen's records and relied upon by Ocwen, and that, based upon her review, "Ocwen's Servicing Records" reflect that the note was physically delivered on April 28, 2006, to Wells Fargo Bank, N.A., which, Jones attested, serves as custodian on behalf of the plaintiff pursuant to a pooling and servicing agreement dated October 1, 2006. Jones further averred that the plaintiff "continues to be the owner and holder of the Note." Even if Jones’ affidavit were sufficient to lay a proper...