LNV Corp. v. Francois

• Decision Date: 30 December 2015
• Citation: 22 N.Y.S.3d 543,134 A.D.3d 1071
• Parties: LNV CORPORATION, respondent, v. Jovan FRANCOIS, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1071

22 N.Y.S.3d 543

LNV CORPORATION, respondent,

v.Jovan FRANCOIS, appellant, et al., defendants.

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

Dec. 30, 2015.

Biolsi Law Group P.C., New York, N.Y. (Steven Alexander Biolsi of counsel), for appellant.

Stein, Wiener & Roth, LLP, Carle Place, N.Y. (Gerald Roth and Ruth Taranto of counsel), for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.

In an action to foreclose a mortgage, the defendant Jovan Francois appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated June 26, 2014, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him and denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as it was related to the defendant Jovan Francois (hereinafter the appellant) and denied the appellant's cross motion for summary judgment dismissing the complaint insofar as asserted against him. A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant's default (see Loancare v. Firshing, 130 A.D.3d 787, 788 ; Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176, 1177, 9 N.Y.S.3d 312 ; Wells Fargo Bank, N.A. v. DeSouza, 126 A.D.3d 965, 3 N.Y.S.3d 619 ; Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 842, 7 N.Y.S.3d 147 ; U.S. Bank, N.A. v. Weinman, 123 A.D.3d 1108, 1109, 2 N.Y.S.3d 128 ). Where, as here, a defendant challenges the plaintiff's standing to maintain the action, the plaintiff must also prove its standing as part of its prima facie showing (see HSBC Bank USA, N.A. v. Roumiantseva, 130 A.D.3d 983, 15 N.Y.S.3d 117 ; HSBC Bank USA, N.A. v. Baptiste, 128 A.D.3d 773, 774, 10 N.Y.S.3d 255 ; Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is the holder or assignee of the underlying note at the time the action is commenced (see Bank of Am., N.A. v. Paulsen, 125 A.D.3d 909, 910, 6 N.Y.S.3d 68 ; US Bank NA v. Faruque, 120 A.D.3d 575, 577, 991 N.Y.S.2d 630 ).

Contrary to the appellant's contention, the plaintiff established its standing as the holder of the note by submitting the affidavit of its representative demonstrating that the note was physically delivered to it and remained in its possession at the time this foreclosure action was commenced (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 ; Loancare v. Firshing, 130 A.D.3d at 788, 14 N.Y.S.3d 410 ; HSBC Bank USA, N.A. v. Sage, 112 A.D.3d 1126, 1127, 977 N.Y.S.2d 446 ). Moreover, while the mortgage passes with the note as an incident thereto and is not dispositive in determining the issue of standing (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34...