BANK TRUST v. PORTER (2019)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Georgia Porter appeals from an order of the Supreme Court, Orange County (Elaine Slobod, J.), dated May 26, 2016.  The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Georgia Porter and for an order of reference.

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

In September 2007, the defendant Georgia Porter (hereinafter the defendant) borrowed the sum of $78,747.20 from nonparty Beneficial Homeowner Service Corporation.  The loan was memorialized by a note and secured by a mortgage encumbering certain real property in Middletown.  The defendant allegedly defaulted on the payment due on April 24, 2010.

In February 2015, the plaintiff commenced this foreclosure action against, among others, the defendant.  After the matter was released from the foreclosure settlement conference part, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The defendant opposed the motion, arguing, among other things, that the plaintiff lacked standing to commence the action and failed to negotiate in good faith pursuant to CPLR 3408.  In an order dated May 26, 2016, the Supreme Court, among other things, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The defendant appeals.

“ ‘Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default’ ” (Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25, quoting Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843).  Additionally, where a defendant places standing in issue, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25;  Aurora Loan Servs., LLC v. Taylor, 114 AD3d 627, 628, 980 N.Y.S.2d 475, affd 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363;  Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247).  A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363;  Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25).  “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, 890 N.Y.S.2d 578;  see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363;  Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d 827, 828, 33 N.Y.S.3d 414).

Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting copies of the mortgage, the note, and evidence of the defendant's default (see JPMorgan Chase Bank v. Mi Hyang Yang, 170 A.D.3d 694, 95 N.Y.S.3d 295;  U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547).  Additionally, the plaintiff established its standing to commence the action by demonstrating that it had physical possession of the note prior to the commencement of the action, as evidenced by its attachment of the note, endorsed in blank, to the certificate of merit filed with the summons and complaint (see Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 45 N.Y.S.3d 189;  JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286;  Deutsche Bank Natl. Trust Co. v. Leigh, 137 A.D.3d 841, 842, 28 N.Y.S.3d 86;  Emigrant Bank v. Larizza, 129 A.D.3d 904, 905, 13 N.Y.S.3d 129;  Nationstar Mtge., LLC v. Catizone, 127 A.D.3d 1151, 1152, 9 N.Y.S.3d 315).  In opposition, the defendant failed to raise a triable issue of fact.

Contrary to the defendant's contention, the record does not reflect that the plaintiff failed to negotiate in good faith pursuant to CPLR 3408 (see PNC Bank, N.A. v. Campbell, 142 A.D.3d 1147, 1148, 38 N.Y.S.3d 234;  Retained Realty, Inc. v. Syed, 137 A.D.3d 1099, 1100, 26 N.Y.S.3d 889;  Deutsche Bank Natl. Trust Co. v. Twersky, 135 A.D.3d 895, 896, 24 N.Y.S.3d 193;  Bank of N.Y. v. Castillo, 120 A.D.3d 598, 600, 991 N.Y.S.2d 446).

Accordingly, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.

SCHEINKMAN, P.J., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.