Wells Fargo Bank, N.A. v. Lewczuk

• Decision Date: 23 August 2017
• Docket Number: 2015-09263. Index No. 29990/10.
• Citation: 153 A.D.3d 890,61 N.Y.S.3d 244
• Parties: WELLS FARGO BANK, N.A., respondent, v. Adam LEWCZUK, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 890

61 N.Y.S.3d 244

WELLS FARGO BANK, N.A., respondent,

v.Adam LEWCZUK, et al., appellants, et al., defendants.

2015-09263. Index No. 29990/10.

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

Aug. 23, 2017.

Alice A. Nicholson, Brooklyn, NY, for appellants.

Stein, Wiener & Roth, LLP (Reed Smith, LLP, New York, NY [Andrew B. Messite and Kerren B. Zinner ], of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and LINDA CHRISTOPHER, JJ.

Appeal from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), dated May 26, 2015. The order, insofar as appealed from, upon a decision of that court dated December 1, 2014, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Adam Lewczuk and Edyta Lewczuk and for an order of reference.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Adam Lewczuk and Edyta Lewczuk and for an order of reference are denied.

On May 6, 2002, Adam Lewczuk and Edyta Lewczuk (hereinafter together the defendants) executed a note in the sum of $376,950 in favor of IndyMac Bank, FSB (hereinafter IndyMac), which was secured by a mortgage on residential property located in Queens (hereinafter the premises). By written assignment dated May 20, 2003, IndyMac assigned the mortgage to Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for BNY Mortgage Company, LLC (hereinafter BNY). On June 20, 2003, the defendants executed a second note in the sum of $39,635 in favor of BNY, secured by a second mortgage on the premises. Also on June 20, 2003, the defendants executed a "Consolidation, Extension and Modification Agreement" (hereinafter CEMA), pursuant to which the two mortgage loan balances were consolidated into a single lien in the sum of $413,000. Annexed to the CEMA were a consolidated note and a consolidated mortgage. On November 18, 2010, MERS, as nominee for BNY, assigned the consolidated mortgage to Wells Fargo Bank, N.A. (hereinafter the plaintiff).

On December 1, 2010, the plaintiff commenced this action to foreclose the mortgage against the defendants, among others. The defendants served an answer in which they asserted as affirmative defenses, inter alia, that the plaintiff lacked standing and that the plaintiff failed to comply with RPAPL 1304. In May 2014, the plaintiff moved, among other things, for summary judgment on the complaint and for an order of reference. In an order dated May 26, 2015, 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 and for an order of reference. The defendantsappeal from the order. We reverse the order insofar as appealed from.

Contrary to the defendants' contention, the Supreme Court properly determined that the plaintiff had standing to commence this action. Where, as here, the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing (see JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 644, 37 N.Y.S.3d 286 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 ). A plaintiff establishes its standing in a mortgage foreclosure action 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 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ). "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" ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578 ; see JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d at 644–645, 37 N.Y.S.3d 286 ; Deutsche Bank Natl. Trust Co. v. Weiss, 133 A.D.3d 704, 705, 21 N.Y.S.3d 126 ; Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 650, 981 N.Y.S.2d 547 ).

Here, the plaintiff established, prima facie, that it had standing to commence the action by submitting the affidavit of its vice president, who averred that the plaintiff was the holder of the consolidated note and the consolidated mortgage at the time of commencement of the action, along with a copy of the consolidated note containing an endorsement from BNY, the originator of the consolidated note, to Alliance Mortgage Company (hereinafter Alliance), and an endorsement in blank from Alliance (see Citimortgage, Inc. v. Klein, 140 A.D.3d 913, 915, 33 N.Y.S.3d 432 ; JPMorgan Chase Bank, N.A. v. Mantle, 134 A.D.3d 903, 904, 23 N.Y.S.3d 258 ; Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d 674, 674, 838 N.Y.S.2d 622 ). In opposition to the plaintiff's prima facie showing, the defendants failed to raise a triable issue of fact.

RPAPL 1304(1), which applies to home loans, provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, ... including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give...