Deutsche Bank Nat'l Trust Co. v. Whalen

• Decision Date: 26 June 2013
• Citation: 107 A.D.3d 931,969 N.Y.S.2d 82,2013 N.Y. Slip Op. 04770
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Thomas J. WHALEN, etc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 931
969 N.Y.S.2d 82
2013 N.Y. Slip Op. 04770

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,
v.
Thomas J. WHALEN, etc., appellant, et al., defendants.

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

June 26, 2013.

[969 N.Y.S.2d 83]

Whalen and Whalen, Dover Plains, N.Y. (Thomas J. Whalen, pro se, of counsel), for appellant.

Hinshaw & Culbertson, LLP, New York, N.Y. (Jason J. Oliveri and Schuyler B. Kraus of counsel), for respondent.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.

[107 A.D.3d 931]In an action to foreclose a mortgage, the defendant Thomas J. Whalen appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated April 16, 2012, as granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against him and dismissing his affirmative defenses and counterclaims.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2005, the defendant Thomas J. Whalen executed a note and mortgage in connection with the refinancing of his home. The original mortgagee transferred the note and mortgage to the plaintiff, and subsequently executed an assignment [107 A.D.3d 932]of those documents to the plaintiff prior to the commencement of this action. Whalen defaulted in 2008, and the plaintiff commenced this action against Whalen and others in 2009. Whalen answered the complaint asserting affirmative defenses and counterclaims alleging, inter alia, that the plaintiff did not have standing to maintain this action and had unclean hands.

Where, as here, standing is put into issue by the defendant, “the plaintiff must prove its standing in order to be entitled to relief” ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578;see Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247). “In a mortgage foreclosure

[969 N.Y.S.2d 84]

action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” ( Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532;see Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 911, 961 N.Y.S.2d 200;U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 753, 890 N.Y.S.2d 578). “Either a written assignment of the underlying note or the physical delivery of the note...