US Bank Nat. Ass'n v. Madero

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: JOSEPH COVELLO
• Citation: US Bank Nat. Ass'n v. Madero, 915 N.Y.S.2d 612, 80 A.D.3d 751 (N.Y. App. Div. 2011)
• Decision Date: 25 January 2011
• Parties: US BANK NATIONAL ASSOCIATION, as Trustee, respondent, v. Miguel MADERO, et al., appellants, et al., defendants.

915 N.Y.S.2d 612

80 A.D.3d 751

US BANK NATIONAL ASSOCIATION, as Trustee, respondent,

v.Miguel MADERO, et al., appellants, et al., defendants.

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

Jan. 25, 2011.

DeGuerre Law Firm, P.C., Staten Island, N.Y. (Anthony DeGuerre of counsel), for appellants.

Hogan Lovells U.S. LLP, New York, N.Y. (Allison J. Schoenthal and Michael E. Blaine of counsel), for respondent.

JOSEPH COVELLO, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

In an action to foreclose a mortgage, the defendants Miguel Madero and Martha Madero appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated January 5, 2010, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them and for an order of reference and, in effect, denied those branches of their cross motion which were for summary judgment dismissing the complaint insofar as asserted against them, or for a framed-issue hearing.

ORDERED that the order is modified, on the law, by deleting the first, second, seventh, eighth, and ninth decretal paragraphs thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them and for an order of reference, and substituting therefor a provision denying those branches of the plaintiff'smotion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the appellants.

The defendants Miguel Madero and Martha Madero (hereinafter together the Maderos) owned and resided in a home located on Victory Boulevard in Staten Island since 1995. On October 20, 2005, Miguel Madero executed a note and, in return for a loan he received, promised to pay the sum of $570,000 plus interest to the lender, Mortgage Lenders Network USA, Inc. (hereinafter the lender). The note was secured by a mortgage on the Maderos' home. The mortgage states that the Maderos mortgaged their home to Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), and its successors in interest solely as nominee for the lender and its successors in interest. In or around April 2008, the Maderos allegedly defaulted in paying their mortgage.

The mortgage was assigned by MERS, as nominee for the lender, its successors and assigns, to the plaintiff, U.S. Bank National Association, as Trustee, by assignment of mortgage dated July 7, 2008, and recorded July 28, 2008.

On or about July 12, 2008, the plaintiff commenced this action against, among others, the Maderos to foreclose on the mortgage. The Maderos answered and alleged lack of standing as an affirmative defense. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint as to the Maderos, and the Maderos cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them, or for a framed-issue hearing to determine whether the terms of the note and mortgage were unconscionable. In the order appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint as to the Maderos and for an order of reference and, in effect, denied those branches of the Maderos' cross motion which were for summary judgment dismissing the complaint insofar as asserted against them and for a framed-issue hearing. The Maderos appeal. We modi...