& Scheuerman, New York, NY (Jonathon D. Warner of
counsel), for appellant.
Lovells U.S. LLP, New York, NY (David Dunn, Chava Brandriss,
and Richard A. Sillett of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, L. PRISCILLA
HALL, SANDRA L. SGROI, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Vista Holding,
Inc., appeals, as limited by its brief, from so much of an
order of the Supreme Court, Kings County (Silber, J.), dated
September 8, 2014, as denied those branches of its motion
which were pursuant to CPLR 3211(a)(3) and (5) to dismiss the
complaint insofar as asserted against it.
that the order is affirmed insofar as appealed from, with
October 24, 2001, the defendant Bertha Pittman, also known as
Bertha Mae Pittman, then the owner of the subject property,
executed a note and mortgage in favor of the defendant D
& M Financial Corp. (hereinafter D & M). In August
2002, Pittman defaulted in making her mortgage payments.
Thereafter, the defendant Vista Holding, Inc. (hereinafter
the appellant), obtained title to the subject property.
prior action to foreclose the mortgage was dismissed for lack
of standing, the plaintiff commenced the instant action to
foreclose the mortgage, alleging that it was the owner and
holder of the note and mortgage. The appellant moved, inter
alia, pursuant to CPLR 3211(a)(3) and (5) to dismiss the
complaint insofar as asserted against it, arguing that the
plaintiff lacked standing, and that the action was
time-barred. The Supreme Court denied those branches of the
Supreme Court properly determined that the action was not
time-barred. Contrary to the appellant's contention, an
affidavit made in support of a motion for an order of
reference in the prior action, which the plaintiff in that
action lacked standing to commence, did not, under the
circumstances of this case, constitute an affirmative action
evidencing the exercise of the option to accelerate the
maturity of the loan (see Wells Fargo Bank, N.A. v
Burke, 94 A.D.3d 980; EMC Mtge. Corp. v Suarez,
49 A.D.3d 592, 593).
Supreme Court also properly denied that branch of the
appellant's motion which was to dismiss the complaint
insofar as asserted against it for lack of standing. A
plaintiff establishes its standing in a mortgage foreclosure
action by demonstrating that, when the action was commenced,
it was either the holder of, or the assignee of, the
underlying note (see LGF Holdings, LLC v Skydel, 139
A.D.3d 814; Wells Fargo Bank, N.A. v Rooney, 132
A.D.3d 980, 981). "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
Collymore, 68 A.D.3d 752, 754; see LGF Holdings, LLC
v Skydel, 139 A.D.3d at 814; Deutsche Bank Trust Co.
Ams. v Vitellas, 131 A.D.3d 52, 59).
the complaint alleged that the plaintiff had standing based
on a series of assignments of the note. Specifically, the
note was assigned by D & M, the original mortgagee, to
Fairbanks Capital Corp. (hereinafter Fairbanks). A second
assignment from Fairbanks to U.S. Bank National Association,
as trustee for Credit Suisse First Boston Mortgage Securities
Corp. Mortgage Pass-Thru Certificates, Series 2004-AR6
(hereinafter U.S. Bank), was executed by Wells Fargo Bank,
N.A. (hereinafter Wells Fargo), "as
attorney-in-fact" for Fairbanks. Wells Fargo, as
attorney-in-fact for U.S. Bank, then executed a third
assignment, from U.S. Bank to the plaintiff.
defendant's motion to dismiss a complaint based upon the
plaintiff's alleged lack of standing, "the burden is
on the moving defendant to establish, prima facie, the
plaintiff's lack of standing" as a matter of law
(Deutsche Bank Trust Co. Ams. v Vitellas, 131 A.D.3d
at 59; see New York Community Bank v McClendon, 138
A.D.3d 805, 806; Arch Bay Holdings, LLC-Series 2010B v
Smith, 136 A.D.3d 719). Here, the appellant failed to
meet that burden, since it merely demonstrated the existence
of questions of fact as to Wells Fargo's authority to
assign the note on behalf of Fairbanks, by pointing to the
plaintiff's failure to attach a power of attorney to the
complaint along with the assignment and asserting that no
such document was recorded. Although the plaintiff will
ultimately be required to demonstrate that Wells Fargo had
authority to assign the note on behalf of Fairbanks in order
to demonstrate its standing on the basis of the written
assignments (see Deutsche Bank Natl. Trust Co. v
Haller, 100 A.D.3d 680, 683; Bank of N.Y. v
Silverberg, 86 A.D.3d 274, 281-283; Aurora Loan
Servs., LLC v Weisblum, 85 A.D.3d 95, 109), the
appellant was not entitled to dismissal of the complaint
based on lack of standing (see HSBC Bank USA, N.A. v
Lewis, 134 A.D.3d 764, 765).
to the appellant's further contention, the language of
the assignments was " broad enough to transfer the
interest in the mortgage as well as the underlying
debt'" (Deutsche Bank Nat. Trust Co. v
Romano, 147 A.D.3d 1021, 1023, quoting Chase Home
Fin., LLC v Miciotta, 101 A.D.3d 1307, 1307-1308).
the Supreme Court properly denied those branches of the
appellant's motion which were pursuant to CPLR 3211(a)(3)
and (5) to dismiss ...