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

• Decision Date: 25 September 2019
• Docket Number: Index No. 6931/13,2018–06128
• Citation: 109 N.Y.S.3d 436,175 A.D.3d 1513
• Parties: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent, v. Doreen T. GRENNAN, etc., et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1513

109 N.Y.S.3d 436

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent,

v.Doreen T. GRENNAN, etc., et al., Appellants, et al., Defendants.

2018–06128

Index No. 6931/13

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

Submitted - April 30, 2019

September 25, 2019

Harold A. Steuerwald, LLC, Bellport, NY, for appellants.

Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel), for respondent.

RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Doreen T. Grennan, Shannon Grennan, Christine Grennan, and Casey Grennan appeal from a judgment of foreclosure and sale of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), entered February 27, 2018. The judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court (Carol MacKenzie, J.) dated March 15, 2016, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Doreen T. Grennan, Shannon Grennan, Christine Grennan, and Casey Grennan, and for an order of reference, and upon an order of the same court (Robert F. Quinlan, J.) dated February 2, 2018, granting the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report and directed the foreclosure and sale of the subject property.

ORDERED that the judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Doreen T. Grennan, Shannon Grennan, Christine Grennan, and Casey Grennan, and for an order of reference are denied, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied as academic, and the orders dated March 15, 2016, and February 2, 2018, are modified accordingly.

On December 1, 2006, the defendant Doreen T. Grennan (hereinafter Doreen) executed a note promising to repay a loan from CTX Mortgage Company, LLC (hereinafter CTX), in the amount of $280,000, secured by a mortgage encumbering her home in Bay Shore (hereinafter the property). Doreen defaulted in making the mortgage payment due March 1, 2009, and all payments due thereafter.

The plaintiff commenced this action by summons and verified complaint dated March 8, 2013, with a copy of the note attached thereto. Doreen interposed a verified answer, along with Shannon Grennan, Christine Grennan, and Casey Grennan, who at that time were denominated as "John Doe" in the caption, raising, inter alia, lack of standing and failure to comply with RPAPL 1304 as affirmative defenses. The plaintiff moved, inter alia, for summary judgment on the complaint, to substitute Shannon Grennan, Christine Grennan, and Casey Grennan in place of "John Doe," and to appoint a referee to calculate amounts due. Doreen, Shannon Grennan, Christine Grennan, and Casey Grennan (hereinafter collectively the defendants) opposed the motion.

By order dated March 15, 2016, the Supreme Court granted the motion, directed that the answer be stricken and the affirmative defenses dismissed, and appointed a referee. Upon completion of the referee's report, the plaintiff moved to confirm the report and for a judgment of foreclosure and sale. The defendants opposed the motion.

By order dated February 2, 2018, the Supreme Court granted the plaintiff's motion. A judgment of foreclosure and sale was entered February 27, 2018, confirming the referee's report and directing the sale of the subject property. The defendants appeal.

Generally, in a mortgage foreclosure action, a plaintiff demonstrates its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v Kingsbury , 171 A.D.3d 871, 95 N.Y.S.3d 893 ; Bank of N.Y. Mellon v. Gordon , 171 A.D.3d 197, 97 N.Y.S.3d 286 ; JPMorgan Chase Bank, N.A. v. Rosa , 169 A.D.3d 887, 889, 94 N.Y.S.3d 602 ; U.S. Bank N.A. v. Greenberg , 168 A.D.3d 893, 894, 91 N.Y.S.3d 459 ). In addition, where, as here, the plaintiff's standing has been placed in issue by the defendant's answer, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment (see JPMorgan Chase Bank, N.A. v. Rosa , 169 A.D.3d at 889, 94 N.Y.S.3d 602 ; U.S. Bank N.A. v. Greenberg , 168 A.D.3d at 894, 91 N.Y.S.3d 459 ; HSBC Bank USA, N.A. v. Oscar , 161 A.D.3d 1055, 1056, 78 N.Y.S.3d 428 ). 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 (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 ; Nationstar Mtge., LLC v. Rodriguez , 166 A.D.3d 990, 992, 89 N.Y.S.3d 205 ; Central Mtge. Co. v. Jahnsen , 150 A.D.3d 661, 663, 56 N.Y.S.3d 107 ). "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" ( Nationstar Mtge., LLC v. Rodriguez , 166 A.D.3d at 992, 89 N.Y.S.3d 205 [internal quotation marks omitted]; see Central Mtge. Co. v. Jahnsen , 150 A.D.3d at 663, 56 N.Y.S.3d 107 ; Deutsche Bank Trust Co. Ams. v. Garrison , 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ; U.S. Bank, N.A. v. Collymore , 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578 ). A plaintiff may establish, prima facie, its standing as the holder of the note by demonstrating that a copy of the note, including an endorsement in blank, was among the exhibits annexed to the complaint at the time the action was commenced (see U.S. Bank N.A. v. Fisher , 169 A.D.3d 1089, 95 N.Y.S.3d 114 ; Nationstar Mtge., LLC v. Rodriguez , 166 A.D.3d at 992, 89 N.Y.S.3d 205 ; U.S. Bank N.A. v. Duthie , 161 A.D.3d 809, 811, 76 N.Y.S.3d 226 ; Deutsche Bank Natl. Trust Co. v. Carlin , 152 A.D.3d 491, 492–493, 61 N.Y.S.3d 16 ; JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ). A "promissory note [is] a negotiable instrument within the meaning of the Uniform Commercial Code" ( Mortgage Elec. Registration Sys., Inc. v. Coakley , 41 A.D.3d 674, 838 N.Y.S.2d 622 ; see UCC 3–104[2][d] ; Bayview Loan Servicing, LLC v. Kelly , 166 A.D.3d 843, 845, 87 N.Y.S.3d 569 ; US Bank, N.A. v. Zwisler , 147 A.D.3d 804, 806, 46 N.Y.S.3d 213 ). A "holder" is "the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession" ( UCC 1–201[b][21][A] ; see UCC 3–301 ; Bayview Loan Servicing, LLC v. Kelly , 166 A.D.3d at 845–846, 87 N.Y.S.3d 569 ; US Bank, N.A. v. Zwisler , 147 A.D.3d at 806, 46 N.Y.S.3d 213 ). Where an instrument is endorsed in blank, it may be negotiated by delivery (see UCC 3–202[1] ; 3–204[2]; Bayview Loan Servicing, LLC v. Kelly , 166 A.D.3d at 845–846, 87 N.Y.S.3d 569 ; US Bank, N.A. v. Zwisler , 147 A.D.3d at 806, 46 N.Y.S.3d 213 ). "An indorsement must be ... on the instrument or on a paper so firmly affixed thereto as to become a part thereof" ( UCC 3–202[2] ).

Here, it is undisputed that a copy of the underlying note was annexed to the complaint. However, notwithstanding the plaintiff's assertion in its appellate brief that "[t]he note, as attached to the complaint, was indorsed in blank on the reverse side of the signature page (and not a separate allonge)," it cannot be ascertained from the copy of the note annexed to the complaint whether the separate page that bears the endorsement in blank was stamped on the back of the note, as alleged by the plaintiff, or on an allonge, in which case the plaintiff would have to prove that the endorsement was "so firmly affixed thereto as to become a part thereof," as required under UCC 3–202(2). Accordingly, the plaintiff failed to eliminate all triable issues of fact as to standing, despite having attached a copy of the note to the complaint at the time the action was commenced.

Moreover, although the plaintiff submitted copies of the note and the mortgage, it failed to establish Doreen's default as a matter of law. The plaintiff relies upon the affidavit of Remar T. Panganiban, a vice president of the plaintiff, to establish, among other things, Doreen's default. "There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon" ( Citigroup v. Kopelowitz , 147 A.D.3d 1014, 1015, 48 N.Y.S.3d 223 ; see HSBC Bank USA, N.A. v. Ozcan , 154 A.D.3d 822, 826, 64 N.Y.S.3d 38 ). Here, while Panganiban's affidavit was sufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a) (see People v. Kennedy , 68 N.Y.2d 569, 579, 510 N.Y.S.2d 853, 503 N.E.2d 501 ), the plaintiff failed to submit copies of the business records themselves. "[T]he business record exception to the hearsay rule applies to a ‘writing or record’ ( CPLR 4518[a] ) ... [and] it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" ( Bank of N.Y. Mellon v. Gordon , 171 A.D.3d 197, 205, 97 N.Y.S.3d 286 [citation omitted]; cf. 9 Weinstein–Korn–Miller, N.Y. Civ. Prac. CPLR 4518.20; see generally Great Am. Ins. Co. v. Auto Mkt. of Jamaica, N.Y. , 133 A.D.3d 631, 632–633, 19 N.Y.S.3d 329 ; 35 Carmody–Wait 2d § 194:94 ). "While a witness may read into the record from the contents of a document which has been admitted into evidence (see HSBC Bank USA, N.A. v. Ozcan , 154 A.D.3d 822,...