57 F. Supp. 3d 198
E.D.N.Y2014Background
- Foreclosure action by Eastern Savings Bank on real property at 1696 Rockaway Pkwy, Brooklyn; Note and Mortgage executed by Defendants in 2006; Defendants defaulted on September 1, 2006 and subsequent payments; Plaintiff alleges ownership of Note and Mortgage via multiple assignments culminating in Assignment of Mortgage #3 to Plaintiff; a gap in chain of title existed due to an unrecorded 2006 assignment, later corrected by Assignment No. 1 dated 2011 with an as-of date in 2006; Defendants asserted lack of standing, among other defenses, prompting cross-motions for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does plaintiff have standing to foreclose? | Plaintiff is the holder of the Note and Mortgage. | Plaintiff lacks title due to gaps in chain of title. | No; plaintiff lacked standing due to failure to show physical delivery and valid chain of title. |
| Has plaintiff established a prima facie case to foreclose under New York law? | Note, Mortgage, and proof of default support foreclosure. | Standing defects defeat prima facie case. | Plaintiff established prima facie case but standing defects precluded relief. |
| Is back-dating of Assignment No. 1 effective without evidence of physical delivery? | Back-dating should be sufficient given possession of instruments. | Retroactive date requires proof of physical delivery. | Back-dating not effective; failure to prove physical delivery defeats standing. |
| What is the weight of evidence on physical delivery between original lender and intermediate assignee? | Affidavits show delivery to Plaintiff. | No evidence of delivery from homel23 to GMAC; insufficient chain of title. | Insufficient evidence of physical delivery; standing not shown. |
Key Cases Cited
- State Bank of Albany v. Fioravanti, 51 N.Y.2d 638 (N.Y. 1980) (establishes prima facie foreclosure elements; burden on mortgagor to show defenses)
- Lasalle Bank Natl. Assn. v. Ahearn, 59 A.D.3d 911 (3rd Dep’t 2009) (physical delivery can perfect assignment; back-dating requires delivery proof)
- U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752 (2d Dep’t 2009) (physical delivery required for standing in chain of title cases)
- Guldi v. Homecomings Fin., LLC, 108 A.D.3d 506 (2d Dep’t 2013) (standing to foreclose depends on lawful holder of notes/mortgage through proper delivery)
- Bank of N.Y. v. Silverberg, 86 A.D.3d 274 (2d Dep’t 2011) (standing requires holder/assignee of note and mortgage at time action commenced)