HSBC Bank United States v. Sage

• Citation: 112 A.D.3d 1126,977 N.Y.S.2d 446,2013 N.Y. Slip Op. 08327
• Parties: HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for ACE Securities Corporation Home Equity Loan Trust, Series 2006–OP2 Asset Backed Pass–Through Certificates, Respondent, v. Gregory SAGE, Appellant, et al., Defendants.
• Decision Date: 12 December 2013
• Court: New York Supreme Court Appellate Division

112 A.D.3d 1126

977 N.Y.S.2d 446

2013 N.Y. Slip Op. 08327

HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for ACE Securities Corporation Home Equity Loan Trust, Series 2006–OP2 Asset Backed Pass–Through Certificates, Respondent,

v.Gregory SAGE, Appellant, et al., Defendants.

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

Dec. 12, 2013.

Gregory Sage, Kerhonkson, appellant pro se.

Hinshaw & Culbertson, New York City (Schuyler Kraus of counsel), for respondent.

Before: ROSE, J.P., STEIN, SPAIN and GARRY, JJ.

ROSE, J.P.

Appeal from an order of the Supreme Court (Melkonian, J.), entered December 20, 2012 in Ulster County, which, among other things, granted plaintiff's motion for summary judgment striking defendant Gregory Sage's answer.

Plaintiff commenced this foreclosure action alleging that defendant Gregory Sage (hereinafter defendant) defaulted on a note secured by a mortgage on his real property. After joinder of issue and an extended period of time during which settlement conferences took place, plaintiff moved for summary judgment striking the answer and appointment of a referee. Defendant cross-moved for, among other things, leave to amend his answer to allege that plaintiff lacked standing to bring the action. Supreme Court granted plaintiff's motion and denied the cross motion. We now affirm.

In a foreclosure action, a mortgagee producing evidence of the mortgage, unpaid note and the mortgagor's default will be entitled to summary judgment ( see Phelps Corp. v. Jones, 108 A.D.3d 814, 815, 969 N.Y.S.2d 206 [2013]; Charter One Bank, FSB v. Leone, 45 A.D.3d 958, 958, 845 N.Y.S.2d 513 [2007]; HSBC Bank USA v. Merrill, 37 A.D.3d 899, 900, 830 N.Y.S.2d 598 [2007], lv. dismissed8 N.Y.3d 967, 836 N.Y.S.2d 540, 868 N.E.2d 221 [2007] ). Here, the mortgage had been pooled, securitized and transferred as part of a pooling and service agreement. Plaintiff submitted the mortgage, the note and allonge endorsing the note in blank, a redacted mortgage loan schedule identifying the loan as part of the pool of loans held in trust, excerpts from the pooling and service agreement, and the acceleration letter reflecting defendant's default. Plaintiff established that the custodian of the trust had physical possession of the note and mortgage prior to the commencement of the action and that, as trustee, plaintiff was responsible for carrying out the terms of the trust. Contrary to defendant's claim, the affidavit from an assistant vice-president of the mortgage servicing company was adequately based on a review of the books and records of the company maintained in the ordinary course of business, and the lack of personal knowledge as to the creation of the documents is not fatal ( seeCPLR 3212[b]; 4518[a]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Accordingly, plaintiff met its initial burden on the motion for summary judgment and the burden then shifted to defendant to come forward with competent and admissible evidence demonstrating the existence of a defense that properly could raise an issue of fact as to his default ( see HSBC Bank USA v. Merrill, 37 A.D.3d at 900, 830 N.Y.S.2d 598; LaSalle Bank Natl. Assn. v. Kosarovich, 31 A.D.3d 904, 905, 820 N.Y.S.2d 144 [2006] ).

In opposition to the motion, and in support of his cross motion to amend his answer, defendant alleged that plaintiff lacked standing to bring the action. Defendant waived the affirmative defense of standing, however, by virtue of his failure to raise it in a pre-answer motion to dismiss or in the answer ( see HSBC Bank USA, N.A. v. Ashley, 104 A.D.3d 975, 975–976, 961 N.Y.S.2d 337 [2013], lv. dismissed21 N.Y.3d 956, 969 N.Y.S.2d 439, 991 N.E.2d 213 [2013]; Kruger v. State Farm Mut. Auto. Ins. Co., 79 A.D.3d 1519, 1520, 914 N.Y.S.2d 344 [2010] ). Moreover, plaintiff's physical possession of the note and mortgage, through its custodian, for over two years prior to commencement of the action is sufficient to confer standing ( see Chase Home Fin., LLC v. Miciotta, 101 A.D.3d 1307, 1307, 956 N.Y.S.2d 271 [2012]; Wells Fargo Bank, N.A. v. Wine, 90 A.D.3d 1216, 1217, 935 N.Y.S.2d 664 [2011]; LaSalle Bank Natl. Assn. v. Ahearn, 59 A.D.3d 911, 912, 875 N.Y.S.2d 595 [2009] ),...