Deutsche Bank Nat'l Trust Co. v. Romano

• Decision Date: 22 February 2017
• Citation: Deutsche Bank Nat'l Trust Co. v. Romano, 147 A.D.3d 1021, 48 N.Y.S.3d 237 (N.Y. App. Div. 2017)
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Frank A. ROMANO, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1021

48 N.Y.S.3d 237

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Frank A. ROMANO, appellant, et al., defendants.

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

Feb. 22, 2017.

Katerina N. Arvanitakis, Bayside, NY, for appellant.

Adam Leitman Bailey, P.C., New York, NY (Jeffrey R. Metz of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, and FRANCESCA E. CONNOLLY, JJ.

In an action to foreclose a mortgage, the defendant Frank A. Romano appeals (1) from an order of the Supreme Court, Suffolk County (Spinner, J.), dated May 13, 2014, and (2), as limited by his brief, from so much of an order of the same court, also dated May 13, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer, and to appoint a referee to compute the amount due and owing under the mortgage.

ORDERED that the appeal from the first order dated May 13, 2014, is dismissed, as that order was superseded by the second order dated May 13, 2014; and it is further,

ORDERED that the second order dated May 13, 2014, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant Frank A. Romano.

"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" (Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ; see LaSalle Bank, N.A. v. Zaks, 138 A.D.3d 788, 29 N.Y.S.3d 514 ; MLCFC 2007–9 Mixed Astoria, LLC v. 36–02 35th Ave. Dev., LLC, 116 A.D.3d 745, 746, 983 N.Y.S.2d 604 ). "Where, as here, the plaintiff's standing has been placed in issue by the defendant's answer, the plaintiff also must prove its standing as part of its prima facie showing" (LaSalle Bank, N.A. v. Zaks, 138 A.D.3d at 788, 29 N.Y.S.3d 514 ; see Aurora Loan Servs., LLC v. Mercius, 138 A.D.3d 650, 651, 29 N.Y.S.3d 462 ). "In a foreclosure action, a plaintiff has standing if it is either the holder or assignee of the underlying note at the time the action was commenced" (LaSalle Bank, N.A. v. Zaks, 138 A.D.3d at 788, 29 N.Y.S.3d 514 ; 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. Handler, 140 A.D.3d 948, 949, 34 N.Y.S.3d 463 ). "A plaintiff may demonstrate that it is the holder or assignee of the underlying note ‘by showing either a written assignment of the underlying note or the physical delivery of the note’ " (Aurora Loan Servs., LLC v. Mercius, 138 A.D.3d at 651, 29 N.Y.S.3d 462, quoting U.S. Bank N.A. v. Guy, 125 A.D.3d 845, 846–847, 5 N.Y.S.3d 116 ).

In support of its motion for summary judgment, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the note, the mortgage, and proof of the defendant Frank A. Romano's default (see Plaza Equities, LLC v. Lamberti, 118 A.D.3d at 689, 986 N.Y.S.2d 843 ). Further, the plaintiff established that it had standing at the time of the commencement of the action by virtue of a written assignment of the mortgage and the underlying debt from the original lender, Home Loan Investment Bank, F.S.B., formerly known as Ocean Bank, F.S.B, to the plaintiff. "[T]he transfer of the mortgage without the debt is a nullity, and no interest is acquired by it, because a mortgage is merely security for a debt or other obligation and cannot exist independently of the debt or obligation" (Citibank, N.A. v. Herman, 125 A.D.3d 587, 588, 3 N.Y.S.3d 379 [citations omitted]; see Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532 ; Kluge v. Fugazy, 145 A.D.2d 537, 538, 536 N.Y.S.2d 92 ). "[T]he foreclosure of a mortgage cannot be pursued by one who has no demonstrated right to the debt" (Bank of N.Y. v. Silverberg, 86 A.D.3d at 280, 926 N.Y.S.2d 532 ). Here, however, in addition to assigning the mortgage, the assignment explicitly transferred "all moneys now owing or that may hereafter become due or owing in respect thereof, and the full benefit of all the powers and of all the covenants and provisos therein contained," which language was "broad enough to transfer the interest in the mortgage as well as the underlying debt" (Chase Home...