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HSBC Bank USA, N.A. v. Armijos

Supreme Court of New York, Second Department

June 21, 2017

HSBC Bank USA, National Association, as trustee for Deutsche Alt-A Securities Mortgage Loan Trust Series 2006-AR5, respondent,
v.
Marco H. Armijos, appellant, et al., defendants. Index No. 24088/08

          R. David Marquez, P.C., Mineola, NY, for appellant.

          Hogan Lovells U.S. LLP, New York, NY (David Dunn and Courtney Colligan of counsel), for respondent.

          WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the defendant Marco H. Armijos appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Butler, J.), entered May 14, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and dismissing his affirmative defenses and counterclaims, and for an order of reference.

         ORDERED that the order is affirmed insofar as appealed from, with costs.

         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 Deutsche Bank Trust Co. Ams. v Garrison, 147 A.D.3d 725, 726; Deutsche Bank Natl. Trust Co. v Abdan, 131 A.D.3d 1001, 1002; Plaza Equities, LLC v Lamberti, 118 A.D.3d 688, 689). However, where, as here, the issue of standing is raised by a defendant, a plaintiff must also establish its standing as part of its prima facie case (see Deutsche Bank Trust Co. Ams. v Garrison, 147 A.D.3d at 726; Security Lending, Ltd. v New Realty Corp., 142 A.D.3d 986, 987; LGF Holdings, LLC v Skydel, 139 A.D.3d 814). 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 Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 361-362; Security Lending, Ltd. v New Realty Corp., 142 A.D.3d at 987; LGF Holdings, LLC v Skydel, 139 A.D.3d at 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 Security Lending, Ltd. v New Realty Corp., 142 A.D.3d at 987; LGF Holdings, LLC v Skydel, 139 A.D.3d at 814).

         Here, in support of its motion, inter alia, for summary judgment on the complaint, the plaintiff produced the mortgage, the unpaid note, and evidence of default. The plaintiff also established that it had standing to commence this action by submitting the affidavit of a vice president of the plaintiff's loan servicer, which established that the plaintiff had physical possession of the note at the time it commenced this action (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d at 361-362; Security Lending, Ltd. v New Realty Corp., 142 A.D.3d at 987).

         In opposition, the appellant failed to raise a triable issue of fact. "[A] grant of summary judgment is not premature merely because discovery has not been completed" (Lamore v Panapoulos, 121 A.D.3d 863, 864; see Chemical Bank v PIC Motors Corp., 58 N.Y.2d 1023, 1026). Here, the appellant failed to establish what additional information he hoped to glean from the entire mortgage file in its original form that could not be gleaned from the original note and mortgage and the portions of the mortgage file that the plaintiff had provided (see CPLR 3212[f]; Reale v Tsoukas, 146 A.D.3d 833, 835-836; Joon Mgt. One Corp. v Town of Ramapo, 142 A.D.3d 587, 589; Vikram Constr., Inc. v Everest Natl. Ins. Co., 139 A.D.3d 720, 721). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Cajas-Romero v Ward, 106 A.D.3d 850, 852 [internal quotation marks omitted]; see Chemical Bank v PIC Motors Corp., 58 N.Y.2d at 1026; Reale v Tsoukas, 146 A.D.3d at 835-836; Rungoo v Leary, 110 A.D.3d 781, 783; Anzel v Pistorino, 105 A.D.3d 784, 786). Moreover, the appellant's bald assertion of forgery in his affidavit in opposition, in the absence of factual assertions to support such a claim, was inadequate to raise a triable issue of fact (see Banco Popular N. Am. v Victory Taxi Mgt., 1 N.Y.3d 381, 384; HSBC Bank, USA v Hagerman, 130 A.D.3d 683, 684; Beitner v Becker, 34 A.D.3d 406, 408).

         The appellant's 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 against the appellant and dismissing his ...


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