US BANK NATIONAL ASSOCIATION CASB v. EZUGWU (2015)

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered June 11, 2014, which, to the extent appealed from, denied plaintiff's motion for summary judgment against defendant Anthony Ezugwu, without prejudice to renewal upon proper papers, unanimously affirmed, with costs.

Plaintiff failed to establish prima facie that it received defendant's mortgage and note by “a proper assignment” (see Midfirst Bank v. Agho, 121 AD3d 343, 347–348 [2nd Dept 2014] ). The Pooling and Servicing Agreement (PSA) provides: “The [nonparty] Depositor hereby sells, transfers, assigns, delivers, sets over and otherwise conveys to the Trustee [plaintiff] in trust for the benefit of the Certificateholders [sic] and the Certificate Insurer, without recourse, the Depositor's right, title and interest in and to [inter alia] the Mortgage Loans listed in the Mortgage Loan Schedule.” However, plaintiff submitted neither the referenced loan schedule nor any other evidence to demonstrate that the subject mortgage and note were included in the assignment.

The affidavit by plaintiff's officer, which states that she personally “reviewed the books and records created, maintained and utilized by Wells Fargo in the ordinary course of its business as Master Servicer and Custodian for the Trust,” does not avail plaintiff, since the affidavit refers to the PSA only.