Homecomings Fin., LLC v. Guldi

• Decision Date: 03 July 2013
• Citation: 969 N.Y.S.2d 470,2013 N.Y. Slip Op. 05048,108 A.D.3d 506
• Parties: HOMECOMINGS FINANCIAL, LLC, formerly known as Homecomings Financial Network, Inc., respondent, v. George O. GULDI, as administrator of the estate of Walter E. Guldi, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 506

969 N.Y.S.2d 470

2013 N.Y. Slip Op. 05048

HOMECOMINGS FINANCIAL, LLC, formerly known as Homecomings Financial Network, Inc., respondent,

v.George O. GULDI, as administrator of the estate of Walter E. Guldi, appellant, et al., defendants.

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

July 3, 2013.

George O. Guldi, Woodbourne, N.Y., appellant pro se.

Zeichner Ellman & Krause, LLP, New York, N.Y. (Jantra Van Roy and Robert Guttmann of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

In an action to foreclose a mortgage, the defendant George O. Guldi, as administrator of the estate of Walter E. Guldi, appeals from (1) an order of the Supreme Court, Suffolk County (Cohalan, J.), dated December 28, 2011, which denied his motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue his opposition to the plaintiff's motion for summary judgment on the amended complaint, and (2) a judgment of foreclosure and sale of the same court entered June 20, 2012, which, upon an order of the same court dated May 19, 2010, granting the plaintiff's motion for summary judgment on the amended complaint, confirmed a referee's report and directed the sale of the subject property.

ORDERED that the appeal from the order dated December 28, 2011, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the judgment is reversed, on the law, the plaintiff's motion for summary judgment on the amended complaint is denied, and, upon searching the record, the defendant George O. Guldi, as administrator of the estate of Walter E. Guldi, is awarded summary judgment dismissing the amended complaint insofar as asserted against him, without prejudice, and the order dated May 19, 2010, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendant George O. Guldi, as administrator of the estate of Walter E. Guldi.

In August 2004, Walter E. Guldi executed an adjustable rate note and mortgage in favor of nonparty Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint Mortgage). The mortgage instrument identified Greenpoint Mortgage as the lender, and Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as “nominee” for the lender. In May 2005, MERS, as nominee for Greenpoint Mortgage, commenced this action to foreclose on the mortgage. In an answer, Walter E. Guldi raised the defense of lack of standing.

On February 8, 2006, MERS purportedly assigned the mortgage instrument to Homecomings Financial Network, Inc. On February 28, 2006, Walter E. Guldi died. In November 2007, Walter's son, the defendant George O. Guldi (hereinafter the appellant), was appointed as the administrator of Walter's estate. In a decision and order dated April 30, 2008, the Supreme Court, inter alia, substituted the appellant for his deceased father, and amended the caption by removing MERS as the plaintiff and substituting there for the plaintiff Homecomings Financial, LLC, formerly known as Homecomings Financial Network, Inc. (hereinafter the plaintiff).

In May 2008, the plaintiff filed a supplemental summons and amended complaint, among other things, to include additional defendants in the foreclosure action. In an answer to the amended complaint, the appellant raised the defense of lack of standing. Thereafter, the plaintiff moved for summary judgment on the amended complaint. In an order dated May 19, 2010, the Supreme Court granted the plaintiff's motion, concluding, among other things, that the defense of lack of standing constituted a “mere conclusory allegation [ ], expression[ ] of hope or unsubstantiated claim[ ].” In an order dated December 28, 2011, the Supreme Court denied the appellant's motion, which was denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue his opposition to the motion for summary judgment. Thereafter, upon the order dated May 19, 2010, the Supreme Court entered a judgment of foreclosure and sale.

The appeal from the order dated December 28, 2011, must be dismissed, as no appeal lies from an order denying reargument ( see generally Tyson v. Tower Ins. Co. of N.Y., 68 A.D.3d 977, 891 N.Y.S.2d 143;JP Morgan Chase Bank, N.A. v. Mark Elliot Korn & Assoc., LLC, 66 A.D.3d 844, 886 N.Y.S.2d 612). However, the appeal from the judgment of foreclosure and sale entered June 20, 2012, brings up for review the order dated May 19, 2010, wherein the Supreme Court granted the plaintiff's motion for summary judgment on the amended complaint ( seeCPLR 5501[a][1]; Brown Bark II, L.P. v. Weiss & Mahoney, Inc., 90 A.D.3d 963, 964, 935 N.Y.S.2d 637;Lancer Ins. Co. v. Marine Motor Sales, Inc., 84 A.D.3d 1318, 1320, 924 N.Y.S.2d 160).

The Supreme Court erred in granting the plaintiff's motion for summary judgment on the amended complaint. “In a mortgage foreclosure 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 U.S. Bank N.A. v. Cange, 96 A.D.3d 825, 826, 947 N.Y.S.2d 522;U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578;Countrywide Home Loans, Inc. v. Gress, 68 A.D.3d 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, and the mortgage passes with the debt as an inseparable incident” ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578;see HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 939 N.Y.S.2d 120). However, “a transfer or assignment of only the mortgage without the debt is a nullity and no interest is acquired by it,” since a mortgage is merely security for a debt and cannot exist independently of it ( U.S. Bank N.A. v. Dellarmo, 94 A.D.3d 746, 748, 942 N.Y.S.2d 122;see Deutsche Bank Natl. Trust Co. v. Barnett, 88 A.D.3d 636, 931 N.Y.S.2d 630). “Where, as here, the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief” ( Bank of N.Y. v. Silverberg, 86 A.D.3d at 279, 926 N.Y.S.2d 532;see Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247).

In this case, the plaintiff failed to make a prima...