Wells Fargo Bank, N.A. v. Talley

• Decision Date: 02 August 2017
• Docket Number: 2015-11658. Index No. 10533/12.
• Citation: 153 A.D.3d 583,59 N.Y.S.3d 743
• Parties: WELLS FARGO BANK, N.A., etc., respondent, v. Melvin P. TALLEY, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 583

59 N.Y.S.3d 743

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

v.Melvin P. TALLEY, appellant, et al., defendants.

2015-11658. Index No. 10533/12.

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

Aug. 2, 2017.

David B. Gilbert, Middletown, NY, for appellant.

Knuckles Komosinski & Manfro, LLP, Elmsford, NY (Michel Lee of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.

Appeal from an order of the Supreme Court, Orange County (Nicholas DeRosa, J.), dated September 4, 2015. The 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 defendant Melvin P. Talley and for an order of reference, and denied that branch of the defendant Melvin P. Talley's cross motion which was for summary judgment dismissing the complaint insofar as asserted against him for lack of standing.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Melvin P. Talley and for an order of reference, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Melvin P. Talley.

In November 2006, Melvin P. Talley (hereinafter the defendant) borrowed the sum of $133,200 from Castle Point Mortgage (hereinafter Castle Point). The loan was evidenced by a note and secured by a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), acting solely as nominee for Castle Point, encumbering real property in Middletown, New York. The defendant allegedly defaulted under the note by failing to make the installment payment due on July 1, 2009, and the monthly installment payments thereafter. Subsequently, in two written assignments, both dated March 31, 2010, the mortgage, "together with [the] note or notes therein described or referred to," allegedly were assigned by MERS, as nominee for Castle Point, to ACT Properties, LLC (hereinafter ACT), and from ACT to the plaintiff.

In December 2012, the plaintiff commenced this action to foreclose the mortgage. The defendant joined issue by service of an answer in which he generally denied the allegations and asserted various affirmative defenses, including lack of standing. After a mandatory foreclosure settlement conference, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against him on the ground, among others, of lack of standing. In an order dated September 4, 2015, the Supreme Court granted the motion and denied the cross motion. The defendant appeals.

"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" ( Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Genuth, 148 A.D.3d 687, 48 N.Y.S.3d 706 ). Where a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 46 N.Y.S.3d 185 ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 973–974, 995 N.Y.S.2d 118 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; U.S. Bank, N.A. v. Noble, 144 A.D.3d 786, 41 N.Y.S.3d 76 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578 ). 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 Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d at 725, 46 N.Y.S.3d 185; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ; Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 862, 45 N.Y.S.3d 189 ).

Here, the plaintiff failed to meet its prima facie burden of establishing its standing (see Arch Bay Holdings, LLC v. Albanese, 146 A.D.3d 849, 45 N.Y.S.3d 506 ). In support of its motion, the plaintiff submitted the affidavit of Selena Mitcherson, a vice president of the plaintiff's loan servicer. Mitcherson averred, based upon her review of the loan servicer's business records, that "prior [to]...