Deutsche Bank Nat'l Trust Co. v. Haller

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: RANDALL T. ENG
• Citation: Deutsche Bank Nat'l Trust Co. v. Haller, 100 A.D.3d 680, 954 N.Y.S.2d 551, 2012 N.Y. Slip Op. 7619 (N.Y. App. Div. 2012)
• Decision Date: 14 November 2012
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Laura A. HALLER, et al., defendants, Andrew J. Homar, appellant.

100 A.D.3d 680

954 N.Y.S.2d 551

2012 N.Y. Slip Op. 07619

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v. Laura A. HALLER, et al., defendants,Andrew J. Homar, appellant.

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

Nov. 14, 2012.

Joseph E. Ruyack III, Chester, N.Y., for appellant.

McGlinchey Stafford, PLLC, Albany, N.Y. (Marc J. Lifset and Laura M. Greco of counsel), for respondent.

RANDALL T. ENG, P.J., PETER B. SKELOS, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action to foreclose a mortgage, the defendant Andrew J. Homar appeals (1), as limited by his brief, from stated portions of an order of the Supreme Court, Orange County (McGuirk, J.), dated June 30, 2011, which, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him, and denied that branch of his cross motion which was pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him, and (2) from an order of the same court, also dated June 30, 2011, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the first order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Andrew J. Homar, and substituting therefor a provision denying that branch of the plaintiff's motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the second order is affirmed, without costs or disbursements.

In January 2008, the defendants Andrew J. Homar (hereinafter the appellant) and Laura A. Haller defaulted on a note and mortgage they had executed in favor of Ameriquest Mortgage Company (hereinafter AMC). In August 2008, Deutsche Bank National Trust Company, as Trustee, in trust for the registered holders of Ameriquest Mortgage Securities, Inc., Asset–Backed Pass–Through Certificates, Series 2004–R2 (hereinafter the plaintiff), commenced this action to foreclose on the mortgage. In the complaint, the plaintiff alleged that it was the owner of the note and mortgage based on a written assignment. In his answer, the appellant alleged, as an affirmative defense, that the plaintiff lacked standing to commence the action.

After the commencement of the action, the plaintiff and the appellant entered into a forbearance agreement, pursuant to which the appellant acknowledged that he and Haller were in default and agreed to a schedule of payments designed to bring the payments due under the note and mortgage current. The forbearance agreement provided that the terms of the mortgage remained in full force and effect.

In June 2009, the plaintiff moved for summary judgment on the complaint on the ground that the appellant had defaulted on his obligations under the forbearance agreement. The appellant opposed the motion and cross-moved, inter alia, pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him on various grounds, including that the plaintiff lacked standing to commence this action. While the motion and cross motion were pending, the appellant also moved for summaryjudgment dismissing the complaint insofar as asserted against him. In an order dated June 30, 2011, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellant, and denied that branch of the appellant's cross motion which was pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him (hereinafter the first order). In a separate order, also dated June 30, 2011, the Supreme Court denied the appellant's motion for summary judgment (hereinafter the second order).

As to the first order, contrary to the Supreme Court's determination, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law. First, the plaintiff 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 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). Here, the evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered to it prior to the commencement of the action. “The affidavit from the plaintiff's servicing...