CitiMortgage, Inc. v. McKenzie

• Decision Date: 23 May 2018
• Docket Number: 2016–00131,Index No. 11169/13
• Citation: CitiMortgage, Inc. v. McKenzie, 161 A.D.3d 1040, 78 N.Y.S.3d 200 (N.Y. App. Div. 2018)
• Parties: CITIMORTGAGE, INC., respondent, v. John A. MCKENZIE, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1040

78 N.Y.S.3d 200

CITIMORTGAGE, INC., respondent,

v.John A. MCKENZIE, et al., appellants, et al., defendants.

2016–00131

Index No. 11169/13

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

Submitted—January 22, 2018

May 23, 2018

John A. McKenzie, New York, NY, and Sacha Singh, Baldwin, NY, appellants pro se.

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

SHERI S. ROMAN, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants John A. McKenzie and Sacha Singh appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 4, 2015. The order granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants John A. McKenzie and Sacha Singh and to appoint a referee, and denied the cross motion of the defendants John A. McKenzie and Sacha Singh for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

In August 2010, the defendants John A. McKenzie and Sacha Singh (hereinafter together the defendants) executed a note in the sum of $360,150 in favor of Cole Taylor Bank, an Illinois Chartered Bank, which was secured by a mortgage encumbering real property in Baldwin. In September 2013, the plaintiff commenced this action to foreclose the mortgage, alleging that the defendants defaulted under the terms of the note by failing to make the payment due on June 1, 2012, and all payments due thereafter. The defendants served an answer asserting affirmative defenses, including that the plaintiff failed to comply with RPAPL 1304 and lacked standing to commence the action. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and to appoint a referee. The defendants cross-moved for summary judgment dismissing the complaint insofar as asserted against them, arguing that the plaintiff lacked standing and failed to strictly comply with RPAPL 1304. In the order appealed from, the Supreme Court granted those branches of the plaintiff's motion and denied the defendants' cross motion. The defendants appeal.

To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 16 N.Y.S.3d 459 ; HSBC Bank, USA v. Hagerman, 130 A.D.3d 683, 683–684, 11 N.Y.S.3d 865 ; Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). In addition, "[w]here, as here, 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" ( Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 973–974, 995 N.Y.S.2d 118 [internal quotation marks omitted]; see Security Lending, Ltd. v. New Realty Corp., 142 A.D.3d 986, 987, 37 N.Y.S.3d 327 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ; Deutsche Bank Natl. Trust Co. v. Cunningham, 142 A.D.3d 634, 635, 36 N.Y.S.3d 726 ). "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 898, 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 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, attached to the plaintiff's complaint was a copy of the underlying note, to which was annexed an...