Bayview Loan Servicing, LLC v. Kelly
| Decision Date | 21 November 2018 |
| Docket Number | 2017–10588,Index No. 30989/15,2016–12999 |
| Parties | BAYVIEW LOAN SERVICING, LLC, etc., Plaintiff, v. Carol A. KELLY, etc., et al., Appellants, et al., Defendants; Kondaur Capital Corporation, etc., Nonparty-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Legal Aid Society of Rockland County, Inc., New City, N.Y. (Derek S. Tarson of counsel), for appellants.
Stim & Warmuth, P.C., Farmingville, N.Y. (Glenn P. Warmuth of counsel), for nonparty-respondent.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Carol A. Kelly and Thomas E. Kelly appeal from (1) an order of the Supreme Court, Rockland County (Gerald E. Loehr, J.), dated November 15, 2016, and (2) an order and judgment of foreclosure and sale (one paper) of the same court dated July 7, 2017. The order, insofar as appealed from, granted those branches of the motion of the nonparty, Kondaur Capital Corporation, which were for summary judgment on the complaint insofar as asserted against the defendants Carol A. Kelly and Thomas E. Kelly, to strike their answer and affirmative defenses, and for an order of reference. The order and judgment of foreclosure and sale, inter alia, is in favor of the nonparty, Kondaur Capital Corporation, and against the defendants Carol A. Kelly and Thomas E. Kelly, directing the foreclosure sale of the property.
ORDERED that one bill of costs is awarded to the defendants Carol A. Kelly and Thomas E. Kelly, payable by the nonparty, Kondaur Capital Corporation.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ).
In December 2006, the defendants Carol A. Kelly and Thomas E. Kelly (hereinafter together the defendants) executed a note in favor of Tribeca Lending Corporation (hereinafter Tribeca Lending), as well as a mortgage on certain residential property. In 2011, the plaintiff's predecessor, Wells Fargo Bank, N.A. (hereinafter Wells Fargo) commenced an action to foreclose the mortgage (hereinafter the prior action). Attached to the complaint in the prior action was a copy of the note, which did not contain any endorsements or allonges. Wells Fargo subsequently moved, inter alia, for summary judgment on the complaint, and the defendants opposed the motion, arguing, among other things, that Wells Fargo lacked standing. In an order dated January 17, 2013, the Supreme Court denied Wells Fargo's motion on the ground that Wells Fargo failed to establish its standing. The court also searched the record and awarded the defendants summary judgment dismissing the complaint on the ground that Wells Fargo lacked standing.
By assignment of mortgage dated February 28, 2014, Wells Fargo assigned its purported interest in the mortgage and the underlying debt to the plaintiff. In or about March 2015, the plaintiff commenced this action against the defendants, among others, to foreclose the mortgage. Attached to the complaint in this action was a copy of the note, which contained an endorsement from Wells Fargo to the plaintiff. The next page was an allonge from Tribeca Lending, endorsing the note in blank. In their answer, the defendants raised lack of standing as an affirmative defense. The plaintiff subsequently assigned the mortgage and the note to the nonparty, Kondaur Capital Corporation (hereinafter Kondaur). Kondaur moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer and affirmative defenses, and for an order of reference. In an order dated November 15, 2016, the Supreme Court granted Kondaur's motion. Thereafter, upon the order, the court entered an order and judgment of foreclosure and sale dated July 7, 2017, inter alia, in favor of Kondaur and against the defendants, directing the foreclosure sale of the property. The defendants appeal.
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