MORTGAGE FORECLOSURE - STANDING NOT A REAL DEFENSE

I note this case because summary judgment was granted in November 2015: this appeal gave the homeowner at least an additional 2.5 years in the home, if not more. The action was commenced in 2013.

CitiMortgage, Inc. v McKenzie, 2018 NY Slip Op 03659, Decided on May 23, 2018, Appellate Division, Second Department:

"To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001; HSBC Bank, USA v Hagerman, 130 AD3d 683, 683-684; Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689). In addition, "[w]here, as here, a plaintiff's 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" (Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 973-974 [internal quotation marks omitted]; see Security Lending, Ltd. v New Realty Corp., 142 AD3d 986, 987; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d 634, 635). "A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was [*2]commenced, it was either the holder or assignee of the underlying note" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362; Flagstar Bank, FSB v Mendoza, 139 AD3d 898). "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" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d at 828; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362).

Here, attached to the plaintiff's complaint was a copy of the underlying note, to which was annexed an allonge dated August 8, 2010. The allonge, which made the note payable to the plaintiff, also bore a separate blank endorsement by the plaintiff making the note payable to bearer. Thus, the plaintiff established, prima facie, that it had standing to commence this action by demonstrating that it was the holder of the note when the action was commenced (see Nationstar Mtge., LLC v Catizone, 127 AD3d 1151, 1152; see also Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725, 726). Additionally, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v Leigh, 137 AD3d 841, 842). Further, the plaintiff established, prima facie, that it strictly complied with the requirements of RPAPL 1304 (see Citimortgage, Inc. v Banks, 155 AD3d 936; Flagstar Bank, FSB v Mendoza, 139 AD3d at 900).

In opposition, the defendants failed to raise a triable issue of fact (see Onewest Bank, N.A. v Mahoney, 154 AD3d 770, 772)."