Bank of N.Y. Mellon v SeligBank of N.Y. Mellon v Selig
Druckman Law Group PLLC, Westbury, NY (Stuart L. Druckman and Maria Sideris of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Krista Selig appeals from a judgment of foreclosure and sale of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 13, 2015. The judgment, upon (1) an order of the same court entered March 27, 2014, inter alia, granting those branches of the plaintiff‘s motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant‘s answer, and to direct the appointment of a referee, (2) an order of the same court dated September 25, 2015, denying those branches of that defendant‘s motion which were to vacate the order entered March 27, 2014, and pursuant to
Ordered that the judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff‘s motion which were for summary judgment on the complaint insofar as asserted against the defendant Krista Selig, to strike that defendant‘s answer, and to direct the appointment of a referee are denied, and the answer of the defendant Krista Selig is reinstated, the plaintiff‘s motion to confirm the referee‘s report and for a judgment of foreclosure and sale is denied as premature, and the orders entered March 27, 2014, and October 13, 2015, are modified accordingly.
On January 23, 2006, the defendant Krista Selig (hereinafter the defendant) executed a promissory note in the amount of $417,200 in favor of Concord Mortgage Corp. (hereinafter Concord Mortgage). The note was secured by a mortgage encumbering real property located in Roslyn Heights. The defendant allegedly defaulted on the loan by failing to make the monthly installment payments due March 1, 2009, and thereafter. In December 2010, the plaintiff commenced this action to foreclose the mortgage against, among others, the defendant, alleging, in relevant part, that it was the holder of the subject note. The defendant served an answer in which she raised, inter alia, lack of standing as an affirmative defense. The defendant did not assert lack of personal jurisdiction in her answer.
The plaintiff moved, inter alia, for summary judgment on the complaint insofar as
“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” (Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015]; see Hudson City Sav. Bank v Genuth, 148 AD3d 687 [2017]). However, where, as here, a defendant places standing in issue, the plaintiff must prove standing in order to be entitled to relief (see Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725 [2017]; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 973-974 [2014]). A plaintiff has standing in a mortgage foreclosure action when 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 NY3d 355, 361-362 [2015]; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 725). A “holder” is “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession” (
Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action (see
We agree with the Supreme Court‘s denial of that branch of the defendant‘s motion, brought by order to show cause, which was pursuant to
The defendant‘s contentions regarding a postjudgment order dated August 29, 2017, are not properly before this Court on this appeal.
The defendant‘s remaining contentions either are without merit or have been rendered