LNV Corp. v. Allison

206 A.D.3d 710

170 N.Y.S.3d 162

LNV CORPORATION, respondent,

v.Robert ALLISON, appellant, et al., defendants.

2017–04597, 2017–04602

Index No. 2584/15

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

Argued—February 22, 2022

June 8, 2022

R. David Marquez, P.C., Mineola, NY, for appellant.

Stein, Wiener & Roth, LLP, Carle Place, NY (Mojdeh Malekan and Edward Wiener of counsel), for respondent.

ANGELA G. IANNACCI, J.P., SHERI S. ROMAN, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Robert Allison appeals from two orders of the Supreme Court, Nassau County (Thomas A. Adams, J.), both dated January 19, 2017. The first 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 that defendant, to strike his answer, and for an order of reference, and denied that defendant's cross motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him. The second order, insofar as appealed from, granted those same branches of the plaintiff's motion and appointed a referee to compute the amount due to the plaintiff.

ORDERED that the first order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Robert Allison, to strike that defendant's answer, and for an order of reference, and substituting therefor provisions denying those branches of the motion; as so modified, the first order is affirmed insofar as appealed from, and so much of the second order as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Robert Allison, to strike that defendant's answer, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff, is vacated; and it is further,

ORDERED that the appeal from the second order is dismissed as academic in light of our determination on the appeal from the first order; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The plaintiff commenced this action against the defendant Robert Allison (hereinafter the defendant), among others, to foreclose a mortgage on real property in Roosevelt. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference. The defendant opposed the motion, contending, among other things, that the plaintiff failed to establish standing, and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him, contending that the plaintiff failed to strictly comply with RPAPL 1304. The Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the defendant's cross motion. The defendant appeals.

"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" ( LNV Corp. v. Sofer, 171 A.D.3d 1033, 1035, 98 N.Y.S.3d 302 [internal quotation marks omitted]). However, "where, as here, the plaintiff's standing has been placed in issue by a defendant's answer, the plaintiff must prove its standing as part of its prima facie showing" ( Nationstar Mtge., LLC v. Shivers, 179 A.D.3d 931, 932, 114 N.Y.S.3d 242 ).

"A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint" ( Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 868, 39 N.Y.S.3d 491 ; 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 ). "Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note" ( U.S. Bank N.A. v. Moulton, 179 A.D.3d 734, 737, 116 N.Y.S.3d 86 ). Here, a special endorsement to the plaintiff appears on a separate, undated allonge. Accordingly, the plaintiff was required to establish both that it physically possessed the note with an allonge at the time that this action was commenced and that the allonge was firmly affixed to the note (see id. at 737, 116 N.Y.S.3d 86 ).

The plaintiff established that it had standing through the affidavit of Julia Green, the vice president of CLMG Corp., the document custodian for the plaintiff. Green affirmed that the plaintiff obtained physical possession of the original note, with the allonge firmly affixed thereto, on June 26, 2008, and was in possession of the note at the time of the commencement of the action (see LNV Corp. v. Sofer, 171 A.D.3d at 1035, 98 N.Y.S.3d 302 ). In opposition, the defendant failed to raise a triable issue of fact.

However, we agree with the defendant that the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. Pursuant to RPAPL 1304, at least 90 days before commencement of an action to foreclose a mortgage on a home loan, a specified notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see id. § 1304[1], [2] ). "Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Deutsche Bank Natl. Trust Co. v. Dennis, 181 A.D.3d 864, 866, 122 N.Y.S.3d 95 [citations and internal quotation marks omitted]). Proof of the requisite mailing can be established with "proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 21, 98 N.Y.S.3d...