Deutsche Bank Nat'l Trust Co. v. Barnett
Decision Date | 04 October 2011 |
Citation | 931 N.Y.S.2d 630,88 A.D.3d 636,2011 N.Y. Slip Op. 06995 |
Parties | DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,v.Joell C. BARNETT, appellant, et al., defendants. |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Joell C. Barnett, Brooklyn, N.Y., appellant pro se.REINALDO E. RIVERA, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.
In an action to foreclose a mortgage, the defendant Joell C. Barnett appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated February 23, 2010, as granted those branches of the plaintiff's motion which were to strike the answer, for summary judgment on the complaint, and for an order of reference, and denied her cross motion pursuant to CPLR 3211(a)(3) to dismiss the complaint.
ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's motion which were to strike the answer, for summary judgment on the complaint, and for an order of reference, and substituting therefor provisions denying those branches the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.
In order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the mortgage. 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 ( see Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609; Wells Fargo Bank, N.A. v. Marchione, 69 A.D.3d 204, 207, 887 N.Y.S.2d 615; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578; Countrywide Home Loans, Inc. v. Gress, 68 A.D.3d 709, 888 N.Y.S.2d 914). An assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired by it ( see Merritt v. Bartholick, 36 N.Y. 44, 45; Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532; LaSalle Bank Natl. Assn. v. Ahearn, 59 A.D.3d 911, 912, 875 N.Y.S.2d 595). “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” ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578; see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d at 108, 923 N.Y.S.2d 609). Here, the plaintiff failed to establish, as a matter of law, that it had standing to commence the action. The Supreme Court thus erred in awarding the plaintiff summary judgment.
Contrary to the contention of the defendant Joell C. Barnett, an affidavit made by the plaintiff was not required, since the plaintiff was not proceeding upon Barnett's default ( cf. CPLR 3215[f] ). However, the documentation submitted failed to establish that, prior to commencement of the action, the plaintiff was the holder or assignee of both the note and mortgage. The plaintiff submitted copies of two different versions of an undated allonge which was purportedly affixed to the original note pursuant to UCC 3–202(2) ( see Slutsky v. Blooming Grove Inn, Inc., 147 A.D.2d 208, 212, 542 N.Y.S.2d 721). Moreover, these allonges purporting to endorse the note from First Franklin, A Division of National City Bank of Indiana...
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