Wells Fargo Bank, N.A. v. Frankson

• Court: New York Supreme Court — Appellate Division
• Citation: Wells Fargo Bank, N.A. v. Frankson, 157 A.D.3d 844, 66 N.Y.S.3d 529(Mem) (N.Y. App. Div. 2018)
• Decision Date: 17 January 2018
• Docket Number: Index No. 5437/10,2016–03148,2016–03145
• Parties: WELLS FARGO BANK, N.A., etc., respondent, v. Susan FRANKSON, et al., appellants, et al., defendants.

157 A.D.3d 844

66 N.Y.S.3d 529 (Mem)

WELLS FARGO BANK, N.A., etc., respondent,

v.Susan FRANKSON, et al., appellants, et al., defendants.

2016–03145

2016–03148

Index No. 5437/10

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

Argued November 3, 2017

January 17, 2018

Biolsi Law Group, P.C., New York, N.Y. (Steven Alexander Biolsi and Juan Paolo F. Dizon of counsel), for appellants.

McGlinchey Stafford PLLC, New York, N.Y. (Mitra P. Singh and Victor L. Matthews of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

Appeals from two orders of the Supreme Court, Kings County (Peter P. Sweeney, J.), both dated December 17, 2015. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Susan Frankson and Michelle Roberts and, in effect, for an order of reference. The second order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Susan Frankson and Michelle Roberts and, in effect, for an order of reference, and appointed a referee to compute the amount due to the plaintiff.

ORDERED that the appeal from so much of the first order dated December 17, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Susan Frankson and Michelle Roberts and, in effect, for an order of reference is dismissed, as those portions of the order were superseded by the second order dated December 17, 2015; and it is further,ORDERED that the second order dated December 17, 2015, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" ( Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ; see Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ). Additionally, where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief (see Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 628, 980 N.Y.S.2d 475, affd 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). A plaintiff in a mortgage foreclosure action has standing where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; U.S. Bank N.A. v. Handler, 140 A.D.3d 948, 949, 34 N.Y.S.3d 463 ). Either a written assignment of the underlying note or the physical delivery of the note is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ).

Here, the plaintiff demonstrated, prima facie, that it was the holder of the note at the time the action was commenced, as evidenced by its attachment of the note, endorsed in blank, to the summons and complaint at the time the action was commenced (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 45...