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Wells Fargo Bank, NA v. Thomas

Supreme Court of New York, Second Department

May 31, 2017

Wells Fargo Bank, NA, etc., respondent,
v.
Pamela J. Thomas, also known as Pamela Thomas, et al., appellants, et al., defendants. Index No. 456/13

          Stephen C. Silverberg, PLLC, Uniondale, NY, for appellants.

          Parker Ibrahim & Berg LLC, New York, NY (Anthony W.Vaughn, Jr., and Kristin M. Mykulak of counsel), for respondent.

          RANDALL T. ENG, P.J., REINALDO E. RIVERA, RUTH C. BALKIN, BETSY BARROS, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the defendants Pamela J. Thomas, also known as Pamela Thomas, and Carl Thomas appeal (1) from an order of the Supreme Court, Nassau County (Adams, J.), entered August 25, 2014, and (2), as limited by their brief, from so much of an order of the same court entered August 28, 2014, as 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         ORDERED that the appeal from the order entered August 25, 2014, is dismissed, as it was superseded by the order entered August 28, 2014; and it is further, ORDERED that the order entered August 28, 2014, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.

         The plaintiff commenced this action against the appellants, among others, to foreclose a mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellants and for an order of reference. The Supreme Court granted the plaintiff'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 Hudson City Sav. Bank v Genuth, 148 A.D.3d 687; Deutsche Bank Natl. Trust Co. v Abdan, 131 A.D.3d 1001, 1002). 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 to be entitled to relief (see Deutsche Bank Trust Co. Ams. v Garrison, 147 A.D.3d 725; Wells Fargo Bank, N.A. v Arias, 121 A.D.3d 973, 973-974). 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 (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 361-362; Deutsche Bank Trust Co. Ams. v Garrison, 147 A.D.3d at 725). Either a written assignment of the underlying note or the physical delivery of the note is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Deutsche Bank Trust Co. Ams. v Garrison, 147 A.D.3d at 726; U.S. Bank N.A. v Saravanan, 146 A.D.3d 1010, 1011; Deutsche Bank Natl. Trust Co. v Logan, 146 A.D.3d 861, 862).

         Here, the plaintiff established, prima facie, that it had standing by demonstrating that it had physical possession of the note at the time it commenced the action, as evidenced by its attachment of the note to the summons and complaint (see JP Morgan Chase Bank, N.A. v Venture, 148 A.D.3d 1269; Deutsche Bank Natl. Trust Co. v Logan, 146 A.D.3d at 862; Nationstar Mtge., LLC v Weisblum, 143 A.D.3d 866, 868). Contrary to the appellants' contention, " [t]here is simply no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it'" (Deutsche Bank Natl. Trust Co. v Logan, 146 A.D.3d at 863, quoting JPMorgan Chase Bank, N.A. v Weinberger, 142 A.D.3d 643, 645). "Further, where the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date'" (Deutsche Bank Natl. Trust Co. v Logan, 146 A.D.3d at 863, quoting JPMorgan Chase Bank, N.A. v Weinberger, 142 A.D.3d at 645; see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d at 362).

         Additionally, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and the affidavit of Victoria J. Greenwood, a vice president of JPMorgan Chase Bank, NA, the plaintiff's loan servicer, attesting to the default in payment (see Deutsche Bank Natl. Trust Co. v Logan, 146 A.D.3d at 861). The appellants' contention that Greenwood's affidavit constituted inadmissible hearsay because she did not have personal knowledge of the plaintiff's record-keeping practices and procedures is without merit (see CPLR 4518; Citigroup v Kopelowitz, 147 A.D.3d 1014; Wells Fargo Bank, N.A. v Gallagher, 137 A.D.3d 898, 900).

         In opposition, the appellants failed to raise a triable issue of fact rebutting the plaintiff's showing or as to the merit of any of their affirmative defenses (see Wells Fargo Bank Minn. Natl. Assn. v Perez, 41 A.D.3d 590).

         The appellants' remaining contentions are without merit.

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


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