AURORA LOANS SERVICES, LLC, Respondent, v NEAL W. MANDEL, Appellant, et al., Defendants.
Appellate Division of the Supreme Court of New York, Second Department
March 22, 2017
148 AD3d 965 | 50 NYS3d 154
In an action to foreclosе a mortgage, the defendant Neal W. Mandel appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Suffоlk County (Pitts, J.), dated March 6, 2014, as granted those branches of the plaintiff‘s motion which were for summary judgment on the complaint insofar as asserted against him, for an order оf reference, and to amend the caption to substitute Nationstar Mortgagе, LLC, as the plaintiff, and denied his cross motion for summary judgment dismissing the complaint insofar as as
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage and subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Neal W. Mandel (hereinafter the defendant), for an order оf reference, and to amend the caption to substitute Nationstar Mortgage, LLC (hereinafter Nationstar), as the plaintiff. The defendant, inter alia, cross-moved for summary judgment dismissing the complaint insofar as asserted against him on the ground of lack of standing, which had been raised in his answer as an affirmative defense. The Supreme Court, among other things, granted those branches of the plaintiff‘s motion which were fоr summary judgment on the complaint insofar as asserted against the defendant, for аn order of reference, and to amend the caption to substitute Nationstаr as the plaintiff. The court also denied the defendant‘s cross motion for summary judgment. The defendant appeals.
” ‘Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default’ ” (North Am. Sav. Bank, FSB v Esposito-Como, 141 AD3d 706, 708 [2016], quoting Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689 [2014]). “Additionally, where, as here, the plaintiff‘s standing is placed in issue by a defendаnt, the plaintiff must prove its standing as part of its prima facie showing” (Flagstar Bank, FSB v Mendoza, 139 AD3d 898, 899 [2016]). “A plaintiff establishеs its standing in a mortgage foreclosure action by demonstrating that it is either the holdеr or assignee of the underlying note at the time the action is commenced” (Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898, 899 [2016]; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 360-362 [2015]; Bank of N.Y. v Silverberg, 86 AD3d 274 [2011]).
Here, the plaintiff established, prima facie, that it had standing to commence this foreclosure action. The plaintiff submitted evidence, including the affidavit of Laurа McCann, a vice president of the plaintiff‘s parent company and a fоrmer vice president of the plaintiff, which sufficiently demonstrated that the plaintiff hаd physical possession of the subject note at the time of the commencement of this action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 360-362; Wells Fargo Bank, N.A. v Gallagher, 137 AD3d at 899; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973 [2014]). Moreover, the mortgage passes with the notе as an incident thereto, and possession or assignment of the mortgage is not disрositive of the plaintiff‘s standing.
Additionally, the plaintiff established its prima facie entitlеment to judgment as a matter of law by producing the
In opposition, the defendаnt failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted those branches of the plaintiff‘s motion which were for summary judgment оn the complaint insofar as asserted against the defendant and for an ordеr of reference. The court also properly denied the defendant‘s сross motion for summary judgment dismissing the complaint insofar as asserted against him, as the defendant failed to make a prima facie showing that the plaintiff lacked standing (see Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652 [2016]).
Furthermore, the Supreme Court providently exercised its discretion in granting thаt branch of the plaintiff‘s motion which was to amend the caption to substitute Nationstar as the plaintiff (see