U.S. Bank National Association, etc., appellant,
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.
C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
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
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.
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
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.
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.
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).
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.
light of our determination, we need not address the