Aurora Loan Servs., LLC v. Vrionedes

• Citation: 167 A.D.3d 829,91 N.Y.S.3d 150
• Decision Date: 19 December 2018
• Docket Number: Index No. 9845/11,2016–00874
• Parties: AURORA LOAN SERVICES, LLC, Respondent, v. Chris VRIONEDES, Appellant, et al., Defendants.
• Court: New York Supreme Court Appellate Division

167 A.D.3d 829
91 N.Y.S.3d 150

AURORA LOAN SERVICES, LLC, Respondent,
v.
Chris VRIONEDES, Appellant, et al., Defendants.

2016–00874
Index No. 9845/11

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

Argued—February 5, 2018
December 19, 2018

91 N.Y.S.3d 152

Law Office of Lawrence Katz PLLC, Cedarhurst, NY, for appellant.

Akerman LLP, New York, N.Y. (Jordan M. Smith and Ashley Miller of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

167 A.D.3d 829

In an action to foreclose a mortgage, the defendant Chris Vrionedes appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 30, 2015. 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 that defendant and dismissing the 6th affirmative defense and the 16th affirmative defense/6th counterclaim asserted by that defendant, and to appoint a referee to compute the amount due.

167 A.D.3d 830

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint and dismissing the 16th affirmative defense/6th counterclaim asserted by the defendant Chris Vrionedes, and to appoint a referee, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Aurora Loan Services, LLC (hereinafter the bank), commenced this action against, among others, the defendant Chris Vrionedes (hereinafter the homeowner), to foreclose a mortgage. Annexed to the complaint was a copy of the note, which had been endorsed in blank.

The homeowner thereafter interposed an answer and counterclaims. As relevant here, the 6th affirmative defense alleged that the bank lacked standing. The 16th affirmative defense/6th counterclaim alleged that the bank failed to comply with RPAPL 1304.

The bank subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against the homeowner and dismissing the 6th affirmative defense and the 16th affirmative defense/6th counterclaim asserted by him, and to appoint a referee to compute the amount due. In an order entered November 30, 2015, the Supreme Court, among other things, granted those branches of the bank's motion. The homeowner appeals, and we modify.

91 N.Y.S.3d 153

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1206–1207, 18 N.Y.S.3d 67 ; Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 895, 964 N.Y.S.2d 548 ). Additionally, where, as here, the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing (see Flagstar Bank, FSB v. Mendoza, 139 A.D.3d 898, 32 N.Y.S.3d 278 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 ). "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" ( 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 ; Flagstar Bank, FSB v. Mendoza, 139 A.D.3d at 899, 32 N.Y.S.3d 278 ). "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

167 A.D.3d 831

incident" ( Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d at 828, 33 N.Y.S.3d 414 ; 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, the bank established, prima facie, that it had standing to prosecute this action by demonstrating that it was in physical possession of the note, which was annexed to the complaint, at the time the action was commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; 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 ). Inasmuch as the...