U.S. Bank, N.A. v. Collymore

• Decision Date: 01 December 2009
• Docket Number: 2008-07847
• Citation: 2009 NY Slip Op 9019,890 N.Y.S.2d 578,68 A.D.3d 752
• Parties: U.S. BANK, N.A., Appellant, v. ADRIAN COLLYMORE, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 752

2009 NY Slip Op 9019

890 N.Y.S.2d 578

U.S. BANK, N.A., Appellant, v. ADRIAN COLLYMORE, Respondent, et al., Defendants.

2008-07847

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

Decided December 1, 2009.

In an action to foreclose a mortgage, the plaintiff U.S. Bank, N.A., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Held, J.), dated July 2, 2008, as denied those branches of its motion which were for summary judgment and to appoint a referee to compute the sums due and owing under the subject note and mortgage.

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

In 2005 the defendant Adrian Collymore (hereinafter the defendant) executed a note to borrow the sum of $569,500 from the New Century Mortgage Corporation (hereinafter New Century). The note was secured by a mortgage on the defendant's property located in Brooklyn. In July 2006 New Century assigned the mortgage to Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), and MERS subsequently assigned the mortgage to U.S. Bank, N.A. (hereinafter the Bank) in December 2007.

On January 15, 2008 the Bank commenced this foreclosure action alleging that it was the holder of the note and mortgage, and that the defendant had defaulted upon his payment obligations as of August 1, 2007. In his verified answer, the defendant alleged lack of standing as an affirmative defense. The Bank thereafter moved, inter alia, for summary judgment and to appoint a referee to compute the sums due and owing under the note and mortgage, and the defendant cross-moved to dismiss the complaint, alleging, inter alia, that the Bank lacked standing to commence this action. In the order appealed from, the Supreme Court denied the motion and cross motion, and the Bank appeals from so much of the order as denied those branches of its motion which were for summary judgment and to appoint a referee to compute the sums due and owing under the subject note and mortgage.

Where, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]; TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2006]; see also Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991]). In a mortgage foreclosure action, 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 (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2007]; Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547 [2003]; First Trust Natl. Assn. v Meisels, 234 AD2d 414 [1996]). Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity (see Merritt v Bartholick, 36 NY 44, 45 [1867]; Kluge v Fugazy, 145 AD2d 537, 538 [1988]). 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 (see Weaver Hardware Co. v Solomovitz, 235 NY 321 [1923]; Payne v Wilson, 74 NY 348, 354-355 [1878]; LaSalle Bank Natl. Assn. v Ahearn, 59...