Deutsche Bank National Trust Company as Trustee for the Holders of Morgan Stanley ABS Capital I Inc., Trust 2005-HE3, Mortgage Pass-Through Certificates, Series 2005-HE3, respondent,
Andrew P. Carlin, appellant, et al., defendants. Index No. 7648/13
Sorid, Uniondale, NY, for appellant.
Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B.
AUSTIN, BETSY BARROS, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Andrew P.
Carlin appeals, as limited by his brief, from so much of an
order of the Supreme Court, Nassau County (Adams, J.),
entered April 15, 2015, as granted that branch of the
plaintiff's motion which was for summary judgment on the
complaint insofar as asserted against him and an order of
that the order is reversed insofar as appealed from, on the
law, with costs, and that branch of the plaintiff's
motion which was for summary judgment on the complaint
insofar as asserted against the appellant and an order of
reference is denied.
2005, the defendant Andrew P. Carlin (hereinafter the
defendant) executed a note in favor of WMC Mortgage Corp.
(hereinafter WMC) and a mortgage on his property in favor of
Mortgage Electronic Registration Systems, Inc. (hereinafter
MERS), as nominee for WMC. Pursuant to paragraph 18 of the
mortgage, the defendant was entitled to a notice of default
prior to the mortgagee demanding payment of the loan in full.
written assignment dated May 9, 2012, MERS, as nominee for
WMC, assigned the mortgage to the plaintiff. In 2013, the
plaintiff commenced this mortgage foreclosure action,
alleging, among other things, that the defendant defaulted on
the subject loan, that it had complied with the RPAPL 1304
notice requirement, and that it was the owner and holder of
the note and mortgage. In his answer, the defendant denied
the material allegations in the complaint and raised several
affirmative defenses, including that the plaintiff failed to
comply with the RPAPL 1304 notice requirement and the notice
requirement in the mortgage, and that it lacked standing. The
plaintiff moved for summary judgment on the complaint and an
order of reference. The Supreme Court granted the
plaintiff's motion. The defendant appeals.
plaintiff established, prima facie, its standing as the
holder of the note by demonstrating that the note was in its
possession at the time it commenced the action, as evidenced
by its attachment of the note endorsed in blank to the
summons and complaint at the time the action was commenced
(see 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; JPMorgan Chase Bank, N.A. v
Weinberger, 142 A.D.3d 643, 645). Contrary to the
defendant's 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" (JPMorgan Chase Bank, N.A. v
Weinberger, 142 A.D.3d at 645; see Deutsche Bank
Natl. Trust Co. v Logan, 146 A.D.3d at 863).
the Supreme Court erred in granting the plaintiff's
motion. In support of its motion, the plaintiff relied upon
the affidavit of Meldin Rhodes, assistant secretary of
Nationstar Mortgage, LLC, the current loan servicer. Rhodes
averred that "servicing records" showed that the
notice of default was mailed to the defendant on November 2,
2011, and the RPAPL 1304 notice was mailed on December 28,
2012. Attached to Rhodes's affidavit were copies of the
notice of default and the RPAPL 1304 notice purportedly sent
by Bank of America, N.A. (hereinafter BOA), the prior loan
servicer, to the defendant.
plaintiff failed to demonstrate the admissibility of the
records relied upon by Rhodes under the business records
exception to the hearsay rule (see CPLR 4518).
Rhodes, an employee of the current loan servicer, did not
aver that he was personally familiar with the record keeping
practices and procedures of BOA, the prior loan servicer.
Thus, Rhodes failed to lay a proper foundation for admission
of records concerning service of the required notices, and
his assertions based on these records were inadmissible
(see CitiMortgage, Inc. v Pappas, 147 A.D.3d 900,
901-902; U.S. Bank N.A. v Martin, 144 A.D.3d 891,
892; HSBC Mtge. Servs., Inc. v Royal, 142 A.D.3d
as the plaintiff failed to tender sufficient evidence to
demonstrate the absence of triable issues of fact as to its
strict compliance with RPAPL 1304 and the notice requirement
in the mortgage, its motion should have been denied, without
regard to the sufficiency of the opposition papers (see
Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853;
Flagstar Bank, FSB v Anderson, 129 A.D.3d 665, 666).
light of our determination, we need not reach the