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

88 A.D.3d 636
931 N.Y.S.2d 630
2011 N.Y. Slip Op. 06995

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,
v.
Joell C. BARNETT, appellant, et al., defendants.

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

Oct. 4, 2011.

[931 N.Y.S.2d 631]

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.

[88 A.D.3d 637] 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...