HSBC Bank USA v. Olivier

179 A.D.3d 648

113 N.Y.S.3d 590 (Mem)

HSBC BANK USA, etc., Respondent,

v.Karla A. OLIVIER, etc., et al., Appellants, et al., Defendants.

2016–07164

Index No. 501715/14

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

Submitted - September 20, 2019

January 8, 2020

David M. Harrison, Brooklyn, NY, for appellants.

Hogan Lovells U.S. LLP, New York, N.Y. (Leah Edmunds, Lisa J. Fried, and Chava Brandriss of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Karla A. Olivier and Dana Reeves Carter appeal from an order of the Supreme Court, Kings County (Noach Dear, J.), dated May 16, 2016. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against those defendants and for an order of reference, and denied that branch of those defendants' cross motion which was for leave to amend their answer to assert the affirmative defense of lack of standing.

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

The plaintiff commenced this mortgage foreclosure action by the filing of a summons and complaint on February 27, 2014. Following joinder of issue by the defendants Karla A. Olivier and Dana Reeves Carter (hereinafter together the defendants), the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, and the defendants cross-moved for leave to amend their answer, inter alia, to assert the affirmative defense of lack of standing. In an order dated May 16, 2016, the Supreme Court determined that the plaintiff had standing to bring the action, granted those branches of the plaintiff's motion, and denied that branch of the defendants' cross motion. The defendants appeal.

A plaintiff in a mortgage foreclosure action establishes its standing by demonstrating that "it was the holder or assignee of the underlying note at the time the action was commenced" ( US Bank N.A. v. Nelson, 169 A.D.3d 110, 114, 93 N.Y.S.3d 138 ; see Wells Fargo Bank, N.A. v. Frankson, 157 A.D.3d 844, 845, 66 N.Y.S.3d 529 ). "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" ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532 ).

Here, the plaintiff established, prima facie, that it had standing to prosecute this action by demonstrating that the original note, endorsed in blank, a true copy of which was annexed to the complaint, was in its possession at the time it commenced the action (see Central Mtge. Co. v. Canas, 173 A.D.3d 967, 968–969, 104 N.Y.S.3d 152 ; U.S. Bank N.A. v. Clement, 163 A.D.3d 742, 743–744, 81 N.Y.S.3d...