Emanuel Archibald, Highland Mills, NY, appellant pro se.
Ballard Spahr LLP, New York, NY (Justin Angelo and Adam
Hartley of counsel), for respondent.
C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Emanuel
Archibald appeals, as limited by his brief, from so much of
an order of the Supreme Court, Orange County (Slobod, J.),
dated June 29, 2015, as granted those branches of the
plaintiff's motion which were for summary judgment on the
complaint insofar as asserted against him and for an order of
that the order is affirmed insofar as appealed from, with
2005, Emanuel Archibald (hereinafter the defendant) and
Yvonne Moody (hereinafter together the defendants) executed a
note in the sum of $503, 400 in favor of Option One Mortgage
Corporation (hereinafter Option One), which was secured by a
mortgage on residential property located in Highland Mills.
Thereafter, Option One assigned the mortgage to the plaintiff
by written assignment dated June 29, 2005. In August 2008,
the plaintiff commenced this action to foreclose the
mortgage. The defendants served an answer in which they
asserted as an affirmative defense that the plaintiff lacked
standing to commence the action. The defendants then moved
pursuant to CPLR 3211(a) to dismiss the complaint insofar as
asserted against them, arguing that the plaintiff lacked
standing. In an order dated March 26, 2015, the Supreme Court
denied the motion, and we are affirming that order insofar as
appealed from (see Wells Fargo Bank, N.A. v
Archibald, __ A.D.3d __ [Appellate Division Docket No.
2015-05973; decided herewith]). In May 2015, the plaintiff
moved, inter alia, for summary judgment on the complaint and
for an order of reference. The defendants opposed the motion,
arguing again that the plaintiff lacked standing. In an order
dated June 29, 2015, the court granted the plaintiff's
motion. The defendant appeals from so much of the order as
granted those branches of the plaintiff's motion which
were for summary judgment on the complaint insofar as
asserted against him and for an order of reference. We affirm
insofar as appealed from.
in moving for summary judgment in an action to foreclose a
mortgage, a plaintiff establishes its prima facie case
through the production of the mortgage, the unpaid note, and
evidence of default" (Deutsche Bank Natl. Trust Co.
v Abdan, 131 A.D.3d 1001, 1002; see HSBC Bank, USA v
Hagerman, 130 A.D.3d 683, 683-684). However, where, 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 as part of its prima
facie showing (see 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 it was either the holder or
assignee of the underlying note at the time the action was
commenced (see U.S. Bank, N.A. v Noble, 144 A.D.3d
786, 787; U.S. Bank, N.A. v Collymore, 68 A.D.3d
in support of its motion, the plaintiff submitted the note,
the mortgage, and an affidavit of April Martin, a
"Document Execution Specialist" for the loan
servicer, in which Martin stated that the subject loan was in
the plaintiff established, prima facie, that it had standing
to commence the action. Contrary to the defendant's
contention that the plaintiff lacked standing to commence
this action because the written assignment only assigned the
mortgage, the plaintiff demonstrated that it had standing
based on the written assignment, which expressly stated that,
in addition to the mortgage, Option One assigned "all
right, title and interest in [the] note" (see U.S.
Bank N.A. v Akande, 136 A.D.3d 887, 890; Emigrant
Bank v Larizza, 129 A.D.3d 904, 904-905; Wells Fargo
Bank, N.A. v Ali, 122 A.D.3d 726, 727).
opposition, the defendant failed to raise a triable issue of
fact. Accordingly, the Supreme Court properly granted those
branches of the plaintiff's motion which were for summary
judgment on the complaint insofar ...