Wells Fargo Bank, NA v. Gallagher

• Decision Date: 09 March 2016
• Citation: 28 N.Y.S.3d 84,137 A.D.3d 898
• Parties: WELLS FARGO BANK, NA, respondent, v. James Anthony GALLAGHER, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 898

28 N.Y.S.3d 84

WELLS FARGO BANK, NA, respondent,

v.James Anthony GALLAGHER, et al., appellants, et al., defendants.

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

March 9, 2016.

Charles H. Wallshein, Melville, N.Y., for appellants.

Hogan Lovells U.S. LLP, New York, N.Y. (Afiya M. Jordan, David Dunn, and Chava Brandriss of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SHERI S. ROMAN and JOSEPH J. MALTESE, JJ.

In an action to foreclose a mortgage, the defendants James Anthony Gallagher and Patricia Gallagher appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered January 16, 2014, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce "the mortgage, the unpaid note, and evidence of default" (Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 895, 964 N.Y.S.2d 548 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v. Charlaff, 134 A.D.3d 1099, 24 N.Y.S.3d 317 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1206–1207, 18 N.Y.S.3d 67 ). Additionally, 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 Deutsche Bank Natl. Trust Co. v. Idarecis, 133 A.D.3d 702, 21 N.Y.S.3d 261 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d at 1207, 18 N.Y.S.3d 67 ; Wachovia Mtge. Corp. v. Lopa, 129 A.D.3d 830, 830–831, 13 N.Y.S.3d 97 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either 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, 360–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Idarecis, 133 A.D.3d 702, 21 N.Y.S.3d 261 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d at 1207, 18 N.Y.S.3d 67 ). A plaintiff may demonstrate that it is the holder or assignee of the underlying note "by showing either a written assignment of the underlying note or the physical delivery of the note" (U.S. Bank N.A. v. Guy, 125 A.D.3d 845, 846–847, 5 N.Y.S.3d 116 ; see Deutsche Bank Natl. Trust Co. v. Idarecis, 133 A.D.3d 702, 21 N.Y.S.3d 261 ; Deutsche Bank Trust Co. Ams. v. Vitellas, 131 A.D.3d 52, 59, 13 N.Y.S.3d 163 ).

Here, contrary to the appellants' contention, the Supreme Court did not err in concluding that the plaintiff, Wells Fargo Bank, NA (hereinafter Wells Fargo), established, prima facie, that it had standing to commence this foreclosure action. Among other things, Wells Fargo submitted the affidavit of a vice president of loan documentation, Shae E. Herman, which sufficiently demonstrated that, at the time the action was commenced, Wells Fargo had physical possession of the note, which included an endorsement to Wells Fargo (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; LNV Corp. v. Francois, 134 A.D.3d 1071, 22 N.Y.S.3d 543 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d at 1207, 18 N.Y.S.3d 67 ; Wells Fargo Bank, N.A. v. Parker, 125 A.D.3d 848, 850, 5 N.Y.S.3d 130 ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 995 N.Y.S.2d 118 ; cf. Wells Fargo Bank, NA v. Burke, 125 A.D.3d 765, 766–767, 5 N.Y.S.3d 107 ). Moreover, while the mortgage passes with the note as an incident thereto and its possession or assignment is not dispositive of Wells Fargo's...