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Deutsche Bank Trust Co. Americas v. Garrison

Supreme Court of New York, Second Department

February 1, 2017

Deutsche Bank Trust Company Americas, etc., respondent,
v.
Webb Garrison, et al., appellants, et al., defendants. Index No. 60396/13

          Raimondi Law, P.C., Massapequa, NY (Christopher A. Raimondi of counsel), for appellants.

          Stern & Eisenberg, P.C., Depew, NY (Todd N. Robinson of counsel), for respondent.

          REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the defendants Webb Garrison and Betty G. Garrison appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated July 6, 2015, as, upon a decision of the same court, also dated July 6, 2015, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them and for an order of reference.

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

         The plaintiff, Deutsche Bank Trust Company Americas (hereinafter the Bank), commenced this action against the defendants Webb Garrison and Betty G. Garrison (hereinafter together the homeowners), among others, to foreclose a mortgage. Annexed to the complaint was a copy of a note executed by the homeowners in which they promised to repay a loan they received from HSBC Mortgage Corporation (USA), which had been endorsed to the Bank. The Bank moved, inter alia, for summary judgment on the complaint insofar as asserted against the homeowners, and for an order of reference. The Supreme Court granted the Bank's motion.

         To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v Abdan, 131 A.D.3d 1001; HSBC Bank, USA v Hagerman, 130 A.D.3d 683, 683-684; Plaza Equities, LLC v Lamberti, 118 A.D.3d 688, 689). However, "[w]here, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by [a] defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief" (Wells Fargo Bank, N.A. v Arias, 121 A.D.3d 973, 973-974 [internal quotation marks omitted]; see Security Lending, Ltd. v New Realty Corp., 142 A.D.3d 986, 987; Deutsche Bank Natl. Trust Co. v Brewton, 142 A.D.3d 683, 684; Deutsche Bank Natl. Trust Co. v Cunningham, 142 A.D.3d 634, 635). "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" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 A.D.3d 827, 828; see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 361-362; Flagstar Bank, FSB v Mendoza, 139 A.D.3d 898). "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" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 A.D.3d at 828; see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d at 361-362).

         Here, the record demonstrates that a copy of the underlying note bearing an endorsement to the Bank was annexed to the complaint. Thus, the Bank established, prima facie, that it had standing to prosecute this action by demonstrating that a written assignment of the note occurred prior to the commencement of the action (see JPMorgan Chase Bank, N.A. v Weinberger, 142 A.D.3d 643, 645; JPMorgan Chase Bank, N.A. v Roseman, 137 A.D.3d 1222, 1223; Deutsche Bank Natl. Trust Co. v Leigh, 137 A.D.3d 841, 842; Emigrant Bank v Larizza, 129 A.D.3d 904, 905; Nationstar Mtge., LLC v Catizone, 127 A.D.3d 1151, 1152).

         The Bank sustained its burden of demonstrating its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and an affidavit of its servicer's vice president, attesting to the homeowners' default in the repayment of their mortgage loan obligation (see Deutsche Bank Natl. Trust Co. v Leigh, 137 A.D.3d at 842). In opposition, the homeowners failed to raise a triable issue of fact.

         Accordingly, the Supreme Court properly granted those branches of the Bank's motion which were for summary judgment on the complaint insofar as asserted ...


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