Aurora Loan Servs., LLC v. Taylor

• Decision Date: 05 February 2014
• Citation: 980 N.Y.S.2d 475,114 A.D.3d 627,2014 N.Y. Slip Op. 00625
• Parties: AURORA LOAN SERVICES, LLC, respondent, v. Monique TAYLOR, etc., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 627
980 N.Y.S.2d 475
2014 N.Y. Slip Op. 00625

AURORA LOAN SERVICES, LLC, respondent,
v.
Monique TAYLOR, etc., et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 5, 2014.

[980 N.Y.S.2d 476]

Zinker & Herzberg, LLP, Smithtown, N.Y. (Jeffrey Herzberg of counsel), for appellants.

Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Michel Lee of counsel), for respondent.

PETER B. SKELOS, J.P., PLUMMER E. LOTT, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

In an action to foreclose a mortgage, the defendants Monique Taylor and Leonard Taylor appeal from a judgment of foreclosure and sale of the Supreme Court, Westchester County (Walker, J.), entered May 14, 2013, which, upon an order of the same court dated April 13, 2012, inter alia, denying their motion for summary judgment dismissing the complaint insofar as asserted against them and granting that branch of the plaintiff's cross motion which was for summary judgment on the complaint insofar as asserted against them, among other things, confirmed a referee's report (Bozeman, Ref.) and directed the sale of the subject property.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the referee's report is rejected, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith.

The plaintiff commenced this action to foreclose a mortgage secured by real property owned by the defendants Monique Taylor and Leonard Taylor (hereinafter the appellants), alleging that they defaulted on their loan payments. The appellants moved for summary judgment dismissing the complaint insofar as asserted against them, arguing that the plaintiff lacked standing to commence the action. The plaintiff cross-moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellants. The Supreme Court denied the appellants' motion, granted the subject branch of the plaintiff's cross motion, and appointed a referee, inter alia, to compute the amount due to the plaintiff on the subject note. Thereafter, the Supreme Court issued a judgment of foreclosure and sale, which, among other things, without a hearing, confirmed the referee's report computing the amount owed to the plaintiff on the note.

The Supreme Court correctly concluded that the plaintiff established its prima facie entitlement to judgment as a

[980 N.Y.S.2d 477]

matter of law by submitting sufficient evidence to demonstrate that it had standing to commence the subject action. Where, as here, standing is put into issue by a defendant, “the plaintiff must prove its standing in order to be entitled to relief” ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578;see Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247). “[A] plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” ( Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532;see Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932, 969 N.Y.S.2d 82;U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 753, 890 N.Y.S.2d 578). “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 at 754, 890 N.Y.S.2d 578;see Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d at 932, 969 N.Y.S.2d 82;Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 912, 961 N.Y.S.2d 200;Bank of N.Y. v. Silverberg, 86 A.D.3d at 281, 926 N.Y.S.2d 532).

Here, the plaintiff established, through admissible evidence ( see Montefiore Med. Ctr. v. Liberty Mut. Ins. Co., 31 A.D.3d 724, 725, 818 N.Y.S.2d 464), its standing as the holder of the note and mortgage by demonstrating that the note was physically delivered to it prior to the commencement of this action. Specifically, an affidavit submitted by the plaintiff established that it obtained physical possession of the original note, previously held by...