Bank of N.Y. Mellon v. Lopes

• Decision Date: 14 February 2018
• Docket Number: 2016–01212,Index No. 13346/12
• Citation: 158 A.D.3d 662,71 N.Y.S.3d 147
• Parties: BANK OF NEW YORK MELLON, etc., respondent, v. Bernil LOPES, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 662

71 N.Y.S.3d 147

BANK OF NEW YORK MELLON, etc., respondent,

v.Bernil LOPES, et al., appellants, et al., defendants.

2016–01212

Index No. 13346/12

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

Argued—October 31, 2017

February 14, 2018

Ardito & Ardito, LLP, Franklin Square, N.Y. (John A. Ardito of counsel), for appellants.

Davidson Fink, LLP, Rochester, N.Y. (Larry T. Powell of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated June 29, 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 the defendants Bernil Lopes and Beverly Lopes and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants Bernil Lopes and Beverly Lopes (hereinafter together the defendants) executed a note dated September 2, 2005, in the sum of $395,000, in favor of Countrywide Home Loans, Inc. (hereinafter Countrywide). The note was secured by a mortgage on residential property located in South Floral Park. The mortgage was later assigned by Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide, to the plaintiff, Bank of New York Mellon.

In October 2012, the plaintiff commenced this action to foreclose the mortgage. The defendants served an answer in which they asserted various affirmative defenses, including that the plaintiff lacked standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The defendants opposed the motion. The Supreme Court granted the motion, and the defendants appeal.

"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" ( Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Genuth, 148 A.D.3d 687, 688–689, 48 N.Y.S.3d 706 ). Where 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 (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ; 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 (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 ; U.S. Bank, N.A. v. Noble, 144 A.D.3d 786, 787, 41 N.Y.S.3d 76 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 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" (Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d at 726, 46 N.Y.S.3d 185 [internal quotation marks omitted]; see U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ; Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 862, 45 N.Y.S.3d 189 ).

Here, the plaintiff established, prima facie, that it had standing to commence the action by submitting the affidavit of a foreclosure specialist for the loan servicer, who stated that, based upon her review of the records...