BANK OF AMERICA, N.A., Respondent, v EDWARD J. KYLE, Appellant, et al., Defendants.
Supreme Court, Appellate Division, Third Department, New York
13 NYS3d 253
Rose, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered November 19, 2013 in Saratoga County, which, among other things, granted plaintiff‘s motion for summary judgment.
Defendant Edward J. Kyle (hereinafter defendant) executed a note in favor of Countrywide Home Loans, Inc. secured by a mortgage on real property located in Saratoga County. He defaulted on the payments in 2011, and plaintiff commenced this action for foreclosure in August 2012. Following joinder of issue, plaintiff moved for summary judgment striking the answer and appointing a referee to compute the amount due. Defendant then cross-moved for, among other things, an order striking plaintiff‘s complaint for failure to respond to discovery demands. Supreme Court granted plaintiff‘s motion for summary judgment and defendant appeals.
Inasmuch as defendant raised the affirmative defense of standing and plaintiff failed to sustain its burden of establishing
Here, plaintiff does not rely on a written assignment of the note, but instead argues that it had physical possession of the note at the time of the commencement of the action. The note itself does not establish this, however, because it has only an undated indorsement in blank from the original lender (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2009]). While plaintiff‘s possession of such a bearer instrument would make it a holder (see Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375, 1376 [2015];
the
Plaintiff‘s alternative argument, that it had the authority to bring the foreclosure action based on the servicing guidelines of Freddie Mac, which defendant alleges is the holder of the note, is not supported by any evidence in the record (see US Bank N.A. v Faruque, 120 AD3d 575, 577 [2014]). Moreover, although the record does include an assignment of the mortgage to plaintiff dated prior to the commencement of the action, there is no evidence that the note was assigned with the mortgage and, without the note, the assignee of only the mortgage has no standing (see Bank of Am., N.A. v Paulsen, 125 AD3d 909, 911 [2015]; Citibank, N.A. v Herman, 125 AD3d at 589; US Bank N.A. v Faruque, 120 AD3d at 577). Accordingly, the issue of standing cannot be determined as a matter of law on this record. Finally, we have considered defendant‘s contentions regarding his cross motion and found them to be unpersuasive.
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted plaintiff‘s motion for summary judgment; said motion denied; and, as so modified, affirmed.