MORTGAGE FORECLOSURE - STANDING DEFENSE STILL LIVES

Deutsche Bank Natl. Trust Co. v Horowitz, 2018 NY Slip Op 05278, Decided on July 18, 2018, Appellate Division, Second Department:

"A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; US Bank N.A. v Cohen, 156 AD3d 844, 845-846; U.S. Bank, N.A. v Noble, 144 AD3d 786; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754). Once a note is transferred, the mortgage passes as an incident to the note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d at 361-362; US Bank N.A. v Cohen, 156 AD3d at 846; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726).

Here, the plaintiff failed to establish, prima facie, that it had standing to commence this action. The copy of the note, which was not annexed to the complaint, but was submitted by the plaintiff in support of its motion, inter alia, for summary judgment, contained an undated endorsement in blank (see Wells Fargo Bank, N.A. v Allen, 154 AD3d 644, 645; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d 634, 635-636; U.S. Bank, N.A. v Collymore, 68 AD3d at 754). Furthermore, although the affidavit of the contract management coordinator of the plaintiff's loan servicer, together with the documents submitted therewith, established, prima facie, that the plaintiff was presently the owner of the note, the affidavit and documentation failed to establish, prima facie, that the plaintiff was the owner of the note at the time the action was commenced (see Wells Fargo Bank, N.A. v Allen, 154 AD3d at 646; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d at 636; U.S. Bank, N.A. v Collymore, 68 AD3d at 754). Thus, the plaintiff failed to establish, prima facie, that it was the holder of the note at the time the action was commenced."