U.S. Bank Nat'l Ass'n v. Okoye-Oyibo

213 A.D.3d 718

183 N.Y.S.3d 485

US BANK NATIONAL ASSOCIATION, etc., appellant,

v.Patricia OKOYE–OYIBO, etc., respondent, et al., defendants.

2019–13944

Index No. 513557/18

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

Submitted—November 28, 2022

February 1, 2023

J. Robbin Law, PLLC, Armonk, NY (Jacquelyn A. DiCicco of counsel), for appellant.

MARK C. DILLON, J.P., JOSEPH A. ZAYAS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated October 10, 2019. The order, insofar as appealed from, denied the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant Patricia Okoye–Oyibo and dismissing her affirmative defenses and counterclaims, for an order of reference, for leave to amend the caption to substitute Magda Delly, Nixon Delly, Sarrah–Jeen Delly, Victoria Delly, Monique Simmonds, Lorna Hughes, Cleveland Flowers, Hakeem Flowers, and Dominique Flowers for the "Doe" defendants, and for leave to enter a default judgment against all nonappearing defendants.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment dismissing the affirmative defenses of the defendant Patricia Okoye–Oyibo other than those alleging lack of standing and failure to comply with conditions precedent, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment dismissing the counterclaims of the defendant Patricia Okoye–Oyibo, and substituting therefor a provision granting that branch of the motion, and (3) by deleting the provision thereof denying that branch of the plaintiff's motion which was for leave to amend the caption to substitute Magda Delly, Nixon Delly, Sarrah–Jeen Delly, Victoria Delly, Monique Simmonds, Lorna Hughes, Cleveland Flowers, Hakeem Flowers, and Dominique Flowers for the "Doe" defendants, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant Patricia Okoye–Oyibo (hereinafter the defendant) executed a note that was secured by a mortgage on real property located in Brooklyn. Subsequently, the plaintiff commenced this action to foreclose the mortgage. The defendant interposed an answer in which she asserted various affirmative defenses, including that the plaintiff lacked standing and failed to comply with conditions precedent, and also asserted counterclaims. The plaintiff moved for summary judgment on the complaint insofar as asserted against the defendant and dismissing her affirmative defenses and counterclaims, for an order of reference, for leave to amend the caption to substitute certain persons for the "Doe" defendants, and for leave to enter a default judgment against all nonappearing defendants. In an order dated October 10, 2019, the Supreme Court, among other things, denied the plaintiff's motion. The plaintiff appeals.

"Generally, in a mortgage foreclosure action, a plaintiff demonstrates its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default" ( Deutsche Bank Natl. Trust Co. v. Kingsbury, 171 A.D.3d 871, 871, 95 N.Y.S.3d 893 ). "Where, as here, the plaintiff's standing has been placed in issue by the defendant's answer, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment" ( id. at 872, 95 N.Y.S.3d 893 ).

Here, the plaintiff failed to establish, prima facie, the defendant's default or the plaintiff's standing to commence the action. "[A] plaintiff may demonstrate its standing in a foreclosure action through proof that it was in possession of the subject note endorsed in blank, or the subject note and a firmly affixed allonge endorsed in blank, at the time of commencement of the action" ( US Bank Trust, N.A. v. Loring, 193 A.D.3d 1101, 1103, 147 N.Y.S.3d 615 ; see Raymond James Bank, NA v. Guzzetti, 202 A.D.3d 841, 843, 158 N.Y.S.3d 881 ). Although the plaintiff attached to the complaint copies of the note and a chain of purported allonges ending with an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonges, which were on pieces of paper completely separate from the note, were "so firmly affixed thereto as to become a part thereof," as required by UCC 3–202(2) (see Raymond James Bank, NA v. Guzzetti, 202 A.D.3d at 843, 158 N.Y.S.3d 881 ; Wells Fargo Bank, N.A. v. Maleno–Fowler, 194 A.D.3d 1094, 1095, 144 N.Y.S.3d 618 ; Citimortgage, Inc. v. Ustick, 188 A.D.3d 793, 795, 136 N.Y.S.3d 85 ). None of the pieces of paper in the record comprising the note or the allonges bore any markings of having ever been attached to one another. Further, although the plaintiff submitted the affidavit of Alfreda Johnson, a foreclosure specialist for Fay Servicing, LLC (hereinafter Fay), the plaintiff's loan servicer, who averred that Fay's records evinced that the plaintiff was in physical possession of the note prior to commencement of the action, and that the defendant had defaulted in making required payments, Johnson relied entirely upon her review of Fay's records. Johnson "failed to identify the records upon which she relied in making the statements, and the plaintiff failed to submit copies of the records themselves" ( U.S. Bank N.A. v. Pickering–Robinson, 197 A.D.3d 757, 763, 153 N.Y.S.3d 179 ; see Deutsche Bank Natl. Trust Co. v. Motzen, 207 A.D.3d 434, 436, 169 N.Y.S.3d 539 ; 2010–3 SFR Venture, LLC v. Schiavoni, 199 A.D.3d 739, 741, 157 N.Y.S.3d 487 ), rendering the averments hearsay.

Additionally, the plaintiff failed to demonstrate, prima facie, that it complied with notice requirements. Contrary to the plaintiff's contention, Johnson's affidavit was insufficient to establish that notice was sent to the defendant in the manner required by RPAPL 1304. While Johnson averred that she had personal knowledge of Fay's...