Onewest Bank v. Mazzone

• Decision Date: 30 July 2015
• Citation: 130 A.D.3d 1399,15 N.Y.S.3d 505,2015 N.Y. Slip Op. 06390
• Parties: ONEWEST BANK, F.S.B., Respondent, v. Lynn M. MAZZONE, Also Known as Lynn Mazzone, et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1399

15 N.Y.S.3d 505

2015 N.Y. Slip Op. 06390

ONEWEST BANK, F.S.B., Respondent,

v.Lynn M. MAZZONE, Also Known as Lynn Mazzone, et al., Appellants, et al., Defendant.

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

July 30, 2015.

Mann Law Firm, PC, Latham (Matthew J. Mann of counsel), for appellants.

Greenberg Traurig, LLP, New York City (Daniel R. Milstein of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, EGAN JR. and ROSE, JJ.

McCARTHY, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered November 14, 2013 in Albany County, which, among other things, granted plaintiff's motion for summary judgment.

In November 2006, defendants Lynn M. Mazzone and Jeffrey Mazzone (hereinafter collectively referred to as defendants) executed a note to borrow $172,000 from Quicken Loans and therewith executed a mortgage against their real property to secure the note. In April 2011, plaintiff commenced this foreclosure action against defendants, among others, alleging that it had been assigned ownership of defendants' mortgage and note and that defendants had failed to pay principal and interest thereon since June 2010. Defendants answered asserting, among other things, that plaintiff lacked standing to bring the foreclosure action. Plaintiff subsequently moved for, among other things, summary judgment on the complaint, which motion Supreme Court granted. Defendants now appeal and we affirm.

Once “the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief” (Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 508, 969 N.Y.S.2d 470 [2013] [internal quotations marks and citation omitted]; see Wells Fargo Bank, NA v. Ostiguy, 127 A.D.3d 1375, 1376, 8 N.Y.S.3d 669 [2015] ). “A plaintiff has standing ... where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” (Chase Home Fin., LLC v. Miciotta, 101 A.D.3d 1307, 1307, 956 N.Y.S.2d 271 [2012] [internal quotation marks and citations omitted]; accord Wells Fargo Bank, NA v. Ostiguy, 127 A.D.3d at 1376, 8 N.Y.S.3d 669). “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” (U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 [2009] [citations omitted]; accord Chase Home Fin., LLC v. Miciotta, 101 A.D.3d at 1307, 956 N.Y.S.2d 271). Here, plaintiff submitted the mortgage and the note, which was endorsed in blank as payable to IndyMac Bank, FSB. Plaintiff also submitted a bill of sale indicating that, in March 2009, the Federal Deposit Insurance Corporation—as receiver for IndyMac—assigned to plaintiff “all right, title and interest ... in and to those assets described in [a mortgage loan schedule],” which identifies defendants' note. Given that the mortgage passes therewith “as an inseparable incident” (U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578), the assignment of the note by the bill of sale was sufficient for plaintiff to make a prima facie showing that it was entitled to judgment as a matter of law ( see Chase Home Fin., LLC v. Miciotta, 101 A.D.3d at 1307, 956 N.Y.S.2d 271; Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d 674, 674, 838 N.Y.S.2d 622 [2007]; compare U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578). Defendants' attorney affirmation was insufficient to raise an issue of fact as to plaintiff's standing or defendants' default, as the attorney had no personal knowledge regarding the validity of the assignment ( see 2 N. St. Corp. v. Getty Saugerties Corp., 68 A.D.3d 1392, 1395, 892 N.Y.S.2d 217 [2009], lv. denied14 N.Y.3d 706, 2010 WL 1235671 [2010]; compare Blueberry Invs. Co. v. Ilana Realty Inc., 184 A.D.2d 906, 908, 585 N.Y.S.2d 564...