Wells Fargo Bank, N.A. v. Webster
| Decision Date | 21 April 2009 |
| Docket Number | 2008-00349. |
| Citation | 61 A.D.3d 856,2009 NY Slip Op 03163,877 N.Y.S.2d 200 |
| Parties | WELLS FARGO BANK, N.A., Respondent, v. SCOTT E. WEBSTER et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is affirmed, with costs.
"`[I]n moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default'" (Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d 482 [2003], quoting Village Bank v Wild Oaks Holding, 196 AD2d 812, 812 [1993]; see Aames Funding Corp. v Houston, 44 AD3d 692, 693 [2007]). Here, the plaintiff bank sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting proof of the existence of the note, mortgage, and consolidation agreement, and the defendants' default in payment (see Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [1997]; Home Sav. Bank v Schorr Bros. Dev. Corp., 213 AD2d 512, 512-513 [1995]; Zitel Corp. v Fonar Corp., 210 AD2d 221 [1994]). The plaintiff established, on its motion for summary judgment, that the defendants took out two mortgages on the subject property which were consolidated to form a single lien in the amount of $522,200, and that the defendants defaulted on their obligations under the note and mortgage. Accordingly, it was incumbent upon the defendants to demonstrate, by admissible evidence, the existence of a triable issue of fact as to a bona fide defense (see State Bank of Albany v Fioravanti, 51 NY2d 638, 647 [1980]; Naugatuck Sav. Bank v Gross, 214 AD2d 549 [1995]; Zitel Corp. v Fonar Corp., 210 AD2d 221 [1994]). The defendants failed to raise such a triable issue of fact. Accordingly, summary judgment was properly granted to the plaintiff.
The defendants' remaining contentions are without merit.
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