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Us Bank National Association v. Coppola

Supreme Court of New York, Second Department

December 27, 2017

US Bank National Association, etc., respondent,
v.
John Coppola, appellant, et al., defendants. Index No. 23598/11

          Submitted - October 6, 2017

          Rubin & Licatesi, P.C., Garden City, NY (Richard H. Rubin and Amy J. Zamir of counsel), for appellant.

          Hogan Lovells U.S. LLP, New York, NY (Benjamin P. Jacobs, David Dunn, and Chava Brandriss of counsel), for respondent.

          WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the defendant John Coppola appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Modica, J.), entered July 10, 2015, as granted that branch of the plaintiffs motion which was for summary judgment on the complaint insofar as asserted against him and denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him.

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

         Where, as here, a plaintiffs 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 Central Mtge. Co. v Jahnsen, 150 A.D.3d 661, 662-663; Deutsche Bank Trust Co. Ams. v Garrison, 147 A.D.3d 725, 726; 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, 25NY3d355, 361-362; Central Mtge. Co. v Jahnsen, 150 A.D.3d at 663; U.S. Bank, N.A. v Collymore, 68 A.D.3d 752, 753-754). ''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 p asses with the debt as an in separable incident" (Central Mtge. Co. v Jahnsen, 150 A.D.3d at 663 [internal quotation marks omitted]; see Deutsche Bank Trust Co. Ams. v Garrison, 147 A.D.3d at 726).

         Here, the note, indorsed in blank, was annexed to the complaint at the time the action was commenced, which was sufficient to establish standing (see Deutsche Bank Natl. Trust Co. v Carlin, 152 A.D.3d 491, 492; U.S. Bank N.A. v Saravanan, 146 A.D.3d 1010, 1011; JPMorgan Chase Bank, N.A. v Weinberger, 142 A.D.3d 643, 645). The plaintiff further sustained its burden of demonstrating its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and proof of the appellant's default in repaying the mortgage loan (see U.S. Bank N.A. v Saravanan, 146 A.D.3d at 1011).

         In opposition, the appellant failed to raise a triable issue of fact and failed to demonstrate his entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. The appellant's contention that the affidavit of the vice president of loan documentation for the plaintiffs loan servicing agent was insufficient to establish standing, since it failed to give factual details as to the physical delivery of the note, is without merit. "There 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 UCC 3-204[2]). "Moreover, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date" (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).

         Finally, as a mortgagor whose loan was owned by a trust, the appellant does not have standing to challenge the plaintiffs possession or status as assignee of the note based on purported noncompliance with certain provisions of the relevant pooling and servicing agreement (see Wells Fargo Bank, N.A. v Archibald, 150 A.D.3d 935, 936-937; U.S. Bank N.A. v Saravanan, 146 A.D.3d at 1012).

         Accordingly, the Supreme Court properly granted that branch of the plaintiffs motion which was for summary judgment on the complaint insofar as asserted against the appellant, and properly denied the appellant's cross motion for summary ...


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