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U.S. Bank National Association v. Cox

Supreme Court of New York, Second Department

March 15, 2017

U.S. Bank National Association, etc., appellant,
v.
Stephen Cox, et al., defendants. Index No. 23262/09

          Knuckles Komosinski & Manfro, LLP, Elmsford, NY (Adam P. Briskin and Loretta Carty of counsel), for appellant.

          MARK C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX, JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated July 17, 2015, as denied those branches of its unopposed motion which were for summary judgment on the complaint and for an order of reference.

         ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and those branches of the plaintiff's motion which were for summary judgment on the complaint and for an order of reference are granted.

         In January 2007, the defendant Sonia Stringer-Cox executed a 30-year note promising to repay the sum of $295, 750 to Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint). The note was secured by a mortgage executed by Stringer-Cox and the defendant Steven Cox on real property owned by them. By written assignment dated February 16, 2007, Greenpoint assigned the subject mortgage "together with the note(s) and obligations therein described" to Aurora Bank, FSB (hereinafter Aurora). By "Assignment of Mortgage and Other Loan Documents, " dated August 19, 2009, Aurora assigned the subject mortgage "TOGETHER with that bond or note or obligation described in said mortgage" to the plaintiff.

         Stringer-Cox failed to make the monthly payment due on April 1, 2009, or any payment due thereafter. In September 2009, the plaintiff commenced this action against Cox and Stringer-Cox, among others, by filing the summons and complaint. Annexed to the summons and complaint, along with various exhibits, were the note, including the allonge with an endorsement to the plaintiff and the assignments. Cox served an answer and asserted various affirmative defenses, including that the plaintiff lacked standing.

         Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The motion was unopposed. In the order appealed from, the Supreme Court denied the plaintiff's motion without prejudice. The plaintiff appeals from so much of the order as denied those branches of its motion which were for summary judgment on the complaint and for an order of reference.

         "A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant's default" (LNV Corp. v Francois, 134 A.D.3d 1071, 1071-1072; see U.S. Bank N.A. v Akande, 136 A.D.3d 887, 887; Deutsche Bank Natl. Trust Co. v Abdan, 131 A.D.3d 1001, 1002). Where a defendant challenges the plaintiff's standing to commence an action to foreclose a mortgage, the plaintiff must also prove its standing as part of its prima facie showing (see HSBC Bank USA, N.A. v Roumiantseva, 130 A.D.3d 983, 983; HSBC Bank USA, N.A. v Baptiste, 128 A.D.3d 773, 774). The plaintiff, in a foreclosure action, has standing where it is either the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 361; Wells Fargo Bank, N.A. v Rooney, 132 A.D.3d 980, 981; HSBC Bank USA, N.A. v Spitzer, 131 A.D.3d 1206, 1207; Deutsche Bank Natl. Trust Co. v Whalen, 107 A.D.3d 931, 932). "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" (U.S. Bank, N.A. v Collymore, 68 A.D.3d 752, 754; see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d at 361-362; Arch Bay Holdings, LLC v Albanese, 146 A.D.3d 849; Bank of N.Y. v Silverberg, 86 A.D.3d 274, 280).

         Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing copies of the unpaid note, the mortgage, and evidence of Stringer-Cox's default (see JPMorgan Chase Bank, N.A. v Mantle, 134 A.D.3d 903, 904), and demonstrating its standing based both on its physical possession of the note and on its status as an assignee of the note as of the date that the action was commenced (see Emigrant Bank v Larizza, 129 A.D.3d 904, 905). As there was no opposition to the plaintiff's motion, no triable issues of fact were raised.

         In light of our determination, we need not address the ...


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