U.S. Bank Nat'l Ass'n v. Rowe

• Court: New York Supreme Court — Appellate Division
• Citation: U.S. Bank Nat'l Ass'n v. Rowe, 194 A.D.3d 978, 149 N.Y.S.3d 197 (N.Y. App. Div. 2021)
• Decision Date: 19 May 2021
• Docket Number: 2018–10901,Index No. 611113/16
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Roger ROWE, et al., appellants, et al., defendants.

194 A.D.3d 978

149 N.Y.S.3d 197

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Roger ROWE, et al., appellants, et al., defendants.

2018–10901

Index No. 611113/16

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

Argued—February 22, 2021

May 19, 2021

Roger Rowe, Amityville, NY, appellant pro se.

Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant Lorena Rowe.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A. Cheverko of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Roger Rowe and Lorena Rowe separately appeal from a judgment of foreclosure and sale of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), entered July 11, 2019. The judgment of foreclosure and sale, upon an order of the same court dated June 26, 2018, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Roger Rowe and Lorena Rowe, to strike those defendants' answers, and for an order of reference, upon an order of the same court also dated June 26, 2018, inter alia, granting the same relief to the plaintiff and referring the matter to a referee to compute the amount due to the plaintiff, and upon an order of the same court dated July 5, 2019, inter alia, 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 sale of the subject property.

ORDERED that the judgment of foreclosure and sale is reversed, on the law, with one bill of costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Roger Rowe and Lorena Rowe, to strike those defendants' answers, 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, and the orders dated June 26, 2018, and the order dated July 5, 2019, are modified accordingly.

In July 2016, the plaintiff commenced this action against, among others, the defendants Roger Rowe and Lorena Rowe (hereinafter together the defendants) to foreclose a mortgage securing a loan in the amount of $250,000. The defendants separately interposed answers in which they each asserted, as affirmative defenses, that the plaintiff lacked standing. In an order dated June 26, 2018, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answers, and for an order of reference. In a separate order also dated June 26, 2018, the court, among other things, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff. Subsequently, in an order dated July 5, 2019, the court, inter alia, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and the court thereafter entered a judgment of foreclosure and sale. The defendants separately appeal.

Contrary to Roger Rowe's contention, the plaintiff demonstrated, prima facie, its standing to commence the action, as evidenced by its attachment of the note, endorsed in blank, to the summons and complaint at the time the action was commenced (see Wells Fargo Bank, N.A. v. Kohli, 173 A.D.3d 941, 942, 104 N.Y.S.3d 124 ; JPMorgan Chase Bank, N.A. v. Roseman, 137 A.D.3d 1222, 1223, 29 N.Y.S.3d 380 ).

However, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to submit evidence demonstrating the defendants' default...