Wells Fargo Bank, NA v. Moussa

201 A.D.3d 1010

157 N.Y.S.3d 767 (Mem)

WELLS FARGO BANK, NA, respondent,

v.Hanna MOUSSA, etc., appellant, et al., defendants.

2018–02689

Index No. 130444/13

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

Submitted—December 21, 2021

January 26, 2022

Hanna & Vlahakis, Brooklyn, NY (Mark Hanna of counsel), for appellant.

Shapiro, DiCaro and Barak, LLC (Reed Smith LLP, New York, NY [Andrew B. Messite and Joseph Teig ], of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Hanna Moussa appeals from an order of the Supreme Court, Richmond County (Philip S. Straniere, J.), dated December 14, 2017. 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 the defendant Hanna Moussa and for an order of reference.

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

The Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Hanna Moussa (hereinafter the defendant) and for an order of reference. Where a defendant in a foreclosure action raises the issue of standing, the plaintiff must prove its standing to obtain relief (see U.S. Bank N.A. v. Pickering–Robinson, 197 A.D.3d 757, 762, 153 N.Y.S.3d 179 ; Bank of N.Y. Mellon v. Santos, 194 A.D.3d 902, 903–904, 149 N.Y.S.3d 193 ). "A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note" ( U.S. Bank N.A. v. Pickering–Robinson, 197 A.D.3d at 762, 153 N.Y.S.3d 179 ; see Bank of N.Y. Mellon v. Santos, 194 A.D.3d at 904, 149 N.Y.S.3d 193 ). " ‘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. Pickering–Robinson, 197 A.D.3d at 762, 153 N.Y.S.3d 179, quoting U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ; see Extraco Banks, N.A. v. Wilson, 197 A.D.3d 559, 560, 153 N.Y.S.3d 61 ). Physical possession of the note is sufficient to confer standing even where the plaintiff is the servicer, not the owner, of the mortgage loan (see Central Mtge. Co. v. Davis, 149 A.D.3d 898, 899, 53 N.Y.S.3d 325 ).

Where a plaintiff is relying on physical possession of the note, it "may establish its prima facie case by simply annexing the note, endorsed in blank or to the plaintiff, to the complaint, or by an affidavit of its representative" ( Extraco Banks, N.A. v. Wilson, 197 A.D.3d at 560, 153 N.Y.S.3d 61 ; see Wilmington Sav. Fund Socy., FSB v. Hershkowitz, 189 A.D.3d 1126, 1127, 138 N.Y.S.3d 54 ; Wells Fargo Bank, N.A. v. Davis, 181 A.D.3d 890, 893, 122 N.Y.S.3d 103 ). Where the plaintiff meets this burden, evidence regarding the assignment of the mortgage is irrelevant (see Central Mtge. Co. v. Davis, 149 A.D.3d at 900, 53 N.Y.S.3d 325 ; Cenlar, FSB v. Censor, 139 A.D.3d 781, 783–784, 32 N.Y.S.3d 228 ).

" ‘[A] promissory note [is] a negotiable instrument within the meaning of the Uniform Commercial Code’ " ( Central Mtge. Co. v. Resheff, 200 A.D.3d 640, 644, 159 N.Y.S.3d 76 [2d Dept.], quoting Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d 674, 674, 838 N.Y.S.2d 622 ; see UCC 3–104[2][d] ). "The holder of an instrument whether or not he [or she] is the owner may ... enforce payment in his [or her] own name" ( UCC 3–301 ; see Central Mtge. Co. v. Resheff, 200 A.D.3d 640, 644, 159 N.Y.S.3d 76 ; Wells Fargo Bank, N.A. v. Burke, 166 A.D.3d 1054, 1054–1055, 88 N.Y.S.3d 449 ). Here, contrary to the...