JPMorgan Chase Bank, Nat'l Ass'n v. Weinberger

• Decision Date: 24 August 2016
• Citation: 142 A.D.3d 643,2016 N.Y. Slip Op. 05850,37 N.Y.S.3d 286
• Parties: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, respondent, v. Leah WEINBERGER, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 643

37 N.Y.S.3d 286

2016 N.Y. Slip Op. 05850

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, respondent,

v.Leah WEINBERGER, appellant, et al., defendants.

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

Aug. 24, 2016.

Ofeck & Heinze, LLP, New York, N.Y. (Mark F. Heinze of counsel), for appellant.

Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Ellis M. Oster and Richard N. Franco of counsel), for respondent.

L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

In an action to foreclose a mortgage, the defendant Leah Weinberger appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Kings County (Walker, J.), dated March 24, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against her and for an order of reference, and denied her cross motion to compel certain discovery, and (2) from a judgment of foreclosure and sale of the same court dated December 21, 2015, which, upon the order, is in favor of the plaintiff and against her, among other things, directing the sale of the subject premises.

ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1] ).

The plaintiff, JPMorgan Chase Bank, National Association (hereinafter the Bank), commenced this action against, among others, the defendant Leah Weinberger (hereinafter the homeowner) to foreclose a mortgage. Annexed to the complaint was a certified copy of the note, which had been endorsed in blank. The Bank moved, inter alia, for summary judgment on the complaint insofar as asserted against the homeowner and for an order of reference. In support of its motion, the Bank submitted, among other things, an affidavit from one of its vice presidents, who stated that based upon her review of the Bank's business records, which were maintained by the Bank in the ordinary course of its business, the Bank was in physical possession of the note at the time the action was commenced. The homeowner opposed the Bank's motion and cross-moved to compel certain discovery. In an order dated March 24, 2015, the Supreme Court granted the Bank's motion and denied the homeowner's cross motion. The court subsequently entered a judgment of foreclosure and sale upon the order.

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1206–1207, 18 N.Y.S.3d 67 ; Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 895, 964 N.Y.S.2d 548 ). Additionally, where, as here, the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing (see Flagstar Bank, FSB v. Mendoza, 139 A.D.3d 898, 32 N.Y.S.3d 278 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 ). “A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note” (Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d 827, 828, 33 N.Y.S.3d 414 ; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Flagstar Bank, FSB v. Mendoza, 139 A.D.3d 898, 32 N.Y.S.3d 278 ). “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” (Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d at 828, 33 N.Y.S.3d 414; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ).

Here, the Bank established, prima facie, that it had standing to prosecute this action by demonstrating that it was in physical possession of the note, which was annexed to the complaint, at the time the action was commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Leigh, 137 A.D.3d 841, 842, 28 N.Y.S.3d 86 ; Emigrant Bank v. Larizza, 129 A.D.3d 904, 905, 13 N.Y.S.3d 129 ). The homeowner's contention that the vice president's affidavit was insufficient to establish the Bank's standing since it...