Bank of N.Y. Mellon v. Gales
Decision Date | 09 April 2014 |
Citation | 116 A.D.3d 723,982 N.Y.S.2d 911,2014 N.Y. Slip Op. 02402 |
Parties | BANK OF NEW YORK MELLON, etc., respondent, v. Traci GALES, et al., appellants, et al, defendants. |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
John M. Schwarz, Jr., Chestnut Ridge, N.Y., for appellants.
Houser & Allison, APC, New York, N.Y. (Kathleen M. Massimo of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Traci Gales and Germaine Gales appeal from an order of the Supreme Court, Rockland County (Kelly, J.), entered May 4, 2012, which granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against them and denied their cross motion to dismiss the complaint for failure to state a cause of action and lack of standing.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendants Traci Gales and Germaine Gales, and substituting therefor a provision denying the plaintiff's motion; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the Supreme Court's determination, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as it did not submit sufficient evidence to demonstrate that it had standing to commence this action. Where, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief ( see U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578;Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247). In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” ( HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 843, 939 N.Y.S.2d 120;see U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 753, 890 N.Y.S.2d 578;Countrywide Home Loans, Inc. v. Gress, 68 A.D.3d 709, 709, 888 N.Y.S.2d 914). “ ‘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’ ” ( HSBC Bank USA v. Hernandez, 92 A.D.3d at 844, 939 N.Y.S.2d 120, quoting U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578;see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609). “Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity” ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d at...
To continue reading
Request your trial-
Deutsche Bank Nat'l Trust Co. v. Torres
...U.S. Bank Nat. Ass'n v. Faruque, 120 A.D.3d 575, 991 N.Y.S.2d 630, 2014 WL 3928918 [2d Dept 2014], supra; Bank of N.Y. Mellon v. Gales, 116 A.D.3d 723, 982 N.Y.S.2d 911[2d Dept 2014] ; MLCFC 2007–9 Mixed Astoria, LLC v. 36–02 35th Ave. Development, LLC, 116 A.D.3d 745, 983 N.Y.S.2d 604 [2d ......
-
U.S. Bank Nat'l Ass'n v. Nelson
...was required to prove its standing in order to be entitled to a judgment of foreclosure and sale (see Bank of N.Y. Mellon v. Gales, 116 A.D.3d 723, 724, 982 N.Y.S.2d 911 ; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932, 969 N.Y.S.2d 82 ). As discussed below, the plaintiff fail......
-
Wells Fargo Bank N.A. v. Arthur
...9 NYS3d 656 [2d Dept 2015] ; Wells Fargo Bank, N.A. v. Erobobo, 127 AD3d 1176, 9 NYS3d 312 [2d Dept 2015] ; Bank of N.Y. Mellon v. Gales, 116 AD3d 723, 982 N.Y.S.2d 911 [2d Dept 2014] ; see also, Griffin v. DaVinci Dev., LLC, 44 AD3d 1001, 845 N.Y.S.2d 97 [2d Dept 2007] [those without privi......
-
Bank of Am. v. Candy Maeder, PNC Bank, Nat'l Ass'n, 060078/2013.
...N.Y.S.2d 735 [2d Dept 2014] ; Midfirst Bank v. Agho, 121 AD3d 343, 991 N.Y.S.2d 623 [2d Dept 2014], supra; Bank of N.Y. Mellon v. Gales, 116 AD3d 723, 982 N.Y.S.2d 911 [2d Dept 2014] ; Kondaur Capital Corp. v. McCary, 115 AD3d 649, 650, 981 N.Y.S.2d 547 [2d Dept 2013] ). Delivery of the not......