Bank of New York Mellon v. Deane
970 N.Y.S.2d 427
N.Y. Sup. Ct.2013Background
- Bank of New York Mellon (plaintiff) brought a 2009 mortgage foreclosure against Carl and Jesse Deane (mortgagors) on a 2005 adjustable-rate note secured by a mortgage on Brooklyn property.
- Plaintiff produced a June 17, 2009 assignment of the mortgage from MERS to plaintiff but no contemporaneous written assignment or indorsement of the underlying promissory note.
- Plaintiff also submitted excerpts of a pooling-and-servicing agreement, an October 1, 2006 resignation-and-assumption agreement, and an affidavit from Wells Fargo custodian/servicing personnel (Angela Frye) claiming delivery/possession, but the documents were incomplete and not properly authenticated.
- Defendants raised standing as an affirmative defense in a verified answer; several other defendants did not appear. Plaintiff sought summary judgment against the Deanes and defaults against nonappearing defendants.
- The court found material evidentiary gaps about assignment/delivery/possession of the note, deficiencies in the Frye affidavit (lack of personal knowledge and failure to produce or authenticate records), and failures to prove notice of default and proper service on certain defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to prosecute foreclosure (entitlement to enforce note/mortgage) | Bank asserts it is owner/holder of note and mortgage (assignment to plaintiff; PSA and trustee paperwork support transfer). | Deanes contended plaintiff lacks standing and capacity to sue; raised in verified answer. | Denied summary judgment: plaintiff failed to show assignment or delivery/possession of the note in admissible form; mortgage assignment alone insufficient to confer standing. |
| Proof of physical delivery/possession of the note | Bank relied on Frye affidavit and servicing/PSA excerpts to show Wells Fargo/plaintiff had possession before commencement. | Deanes disputed standing; court required authenticated factual proof of delivery/possession. | Denied: Frye affidavit lacked personal knowledge, supporting records were neither attached nor authenticated, and details of delivery were missing. |
| Sufficiency of notice and acceleration | Plaintiff asserted acceleration via December 21, 2008 notice of default. | Deanes argued notice and authority defects; court required proof compliance with mortgage §22. | Denied: plaintiff produced no proof of service of the notice and the notice was given by an entity not shown to be the Lender or authorized agent. |
| Default judgments against non-appearing defendants | Plaintiff sought defaults and argued standing need not be shown against defaulting parties. | Nonappearing defendants had service and identity defects; some defendants not shown to be properly served. | Denied as pleaded: even though standing need not always be proven against defaulting parties, plaintiff failed to prove the facts constituting the claim or proper service for several nonappearing defendants. |
Key Cases Cited
- Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 A.D.3d 882 (2d Dep't 2010) (plaintiff must submit mortgage and unpaid note and evidence of default to make prima facie case on summary judgment)
- GRP Loan, LLC v Taylor, 95 A.D.3d 1172 (2d Dep't 2012) (standing requires holder or assignee of note and mortgage prior to commencement)
- US Bank Natl. Assn. v Alvarez, 49 A.D.3d 711 (2d Dep't 2008) (summary judgment burden requires note and mortgage and evidence of default)
- Bank of N.Y. v Silverberg, 86 A.D.3d 274 (2d Dep't 2011) (mortgage passes with debt; assignment of mortgage without the note does not confer standing; delivery can effect transfer)
- Zuckerman v. City of New York, 49 N.Y.2d 557 (Ct. App. 1980) (summary judgment requires evidentiary proof in admissible form)
- Aurora Loan Servs., LLC v Weisblum, 85 A.D.3d 95 (2d Dep't 2011) (issues on standing and evidentiary sufficiency defeat summary judgment)
- Homecomings Fin., LLC v Guldi, 108 A.D.3d 506 (2d Dep't 2013) (requires factual proof of physical delivery of the note when relied upon for standing)
(Decision: plaintiff's motion denied with leave to renew after curing documentary and evidentiary deficiencies.)