HSBC Bank USA v. Hernandez

• Decision Date: 21 February 2012
• Parties: HSBC BANK USA, etc., appellant, v. Ana HERNANDEZ, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01434
92 A.D.3d 843
939 N.Y.S.2d 120

HSBC BANK USA, etc., appellant,
v.
Ana HERNANDEZ, et al., respondents.

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

Feb. 21, 2012.

[939 N.Y.S.2d 121]

Hogan Lovells US, LLP, New York, N.Y. (Allison J. Schoenthal, Renee Garcia, and Jessica L. Ellsworth of counsel), for appellant.

Harold M. Somer, P.C., Westbury, N.Y., for respondents.

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

[92 A.D.3d 843] In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered October 8, 2010, which denied its motion for summary judgment on the complaint and, upon, in effect, searching the record, awarded summary judgment to the defendants dismissing the complaint without prejudice.

ORDERED that the order is modified, on the law, by deleting the provision thereof, in effect, searching the record and awarding summary judgment to the defendants dismissing the complaint without prejudice; as so modified, the order is affirmed, without costs or disbursements.

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, 279, 926 N.Y.S.2d 532; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609;

[939 N.Y.S.2d 122]

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, 753, 890 N.Y.S.2d 578). An assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired by it ( see Deutsche Bank Natl. Trust Co. v. Barnett, 88 A.D.3d 636, 637, 931 N.Y.S.2d 630; [92 A.D.3d 844] Bank of N.Y. v. Silverberg, 86 A.D.3d at 280, 926 N.Y.S.2d 532). “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, prima facie, that it had standing to commence the action. The plaintiff's evidence did not demonstrate that the note was...