BANK TRUST NATIONAL ASSOCIATION v. JIMENEZ (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Joseph R. Conway, J.), dated February 14, 2025.  The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants David Jimenez and Denise Jimenez, to strike their answer and dismiss their affirmative defenses and counterclaims, and for an order of reference, and granted that branch of those defendants' cross-motion which was, in effect, for a trial limited to the issue of standing.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants David Jimenez and Denise Jimenez, to strike their answer and dismiss their affirmative defenses and counterclaims, and for an order of reference are granted, and that branch of those defendants' cross-motion which was, in effect, for a trial limited to the issue of standing is denied.

The plaintiff commenced this action to foreclose a mortgage on certain real property located in East Rockaway.  The defendants David Jimenez and Denise Jimenez (hereinafter together the defendants) interposed an answer asserting various affirmative defenses, including lack of standing, and two counterclaims.

The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer and dismiss their affirmative defenses and counterclaims, and for an order of reference.  The defendants opposed the motion and cross-moved, in effect, for summary judgment dismissing the complaint insofar as asserted against them for lack of standing or, in the alternative, for a trial limited to the issue of standing.  In an order dated February 14, 2025, the Supreme Court, among other things, denied those branches of the plaintiff's motion and granted that branch of the defendants' cross-motion which was, in effect, for a trial limited to the issue of standing.  The plaintiff 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” (Avail 1, LLC v. Singh, 239 A.D.3d 927, 928, 238 N.Y.S.3d 223;  see Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459).  “ ‘[W]here, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief’ ” (Avail 1, LLC v. Singh, 239 A.D.3d at 928, 238 N.Y.S.3d 223, quoting Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 973–974, 995 N.Y.S.2d 118).  “ ‘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’ ” (id., quoting Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d 827, 828, 33 N.Y.S.3d 414;  see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363).  “ ‘The plaintiff meets this burden with proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to the commencement of the foreclosure action’ ” (Avail 1, LLC v. Singh, 239 A.D.3d at 929, 238 N.Y.S.3d 223, quoting Wilmington Sav. Fund Socy., FSB v. Racer, 217 A.D.3d 730, 732, 191 N.Y.S.3d 642;  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).

Here, contrary to the defendants' contention, the plaintiff established, prima facie, its standing to commence this action by demonstrating that it had physical possession of the note at the time the action was commenced through the attachment of a copy of the note, endorsed in blank, to the summons and complaint (see Avail 1, LLC v. Singh, 239 A.D.3d at 929, 238 N.Y.S.3d 223;  Bank of N.Y. Mellon v. Swift, 213 A.D.3d 624, 625, 183 N.Y.S.3d 513).  “[W]here the note is attached to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained before a particular date” (Wells Fargo Bank, N.A. v. Ciurleo, 244 A.D.3d 1024, 1027, 247 N.Y.S.3d 442 [internal quotation marks omitted] ).  In opposition, the defendants failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer and dismiss their affirmative defenses and counterclaims, and for an order of reference, and should have denied that branch of the defendants' cross-motion which was, in effect, for a trial limited to the issue of standing.

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.