EASTERN SAVINGS BANK, FSB v. Ebony THOMPSON, Katrina Breedy, New York City Parking Violations Bureau, New York Environmental Control Board, John Doe, # 1-5, John Doe, # 6
No. 14-4520-cv.
United States Court of Appeals, Second Circuit
Nov. 24, 2015.
Spaulding next contends that the sentence was substantively unreasonable because the district court failed to account properly for multiple personal characteristics, as well as factors set out in
We have considered Defendants-Appellants’ remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
Dwight Yellen (Jerold Feuerstein and Michelle Mandelstein, on the brief), Kriss & Feuerstein LLP, New York, NY, for Appellant.
Steven Alexander Biolsi, Biolsi Law Group P.C., New York, NY, for Appellees.
PRESENT: CHESTER J. STRAUB, REENA RAGGI, and RICHARD C. WESLEY, Circuit Judges.
In this foreclosure action, plaintiff Eastern Savings Bank, FSB (“Eastern“) appeals from the denial of its motion for summary judgment and the award of summary judgment to defendants based on Eastern‘s failure to demonstrate standing. See Eastern Savings Bank, FSB v. Thompson, 57 F.Supp.3d 198 (E.D.N.Y. 2014). Eastern submits that its physical possession of the defaulted promissory note, indorsed in blank, at the time it commenced this action was sufficient to establish its standing, and that the district court erred in requiring it to make a further showing of the note‘s and the mortgage‘s chain of custody through evidence of their physical delivery from Home123 Corporation (“Home123“), the original note holder, to servicing agency GMAC Mortgage, LLC (“GMAC“). Though the record is unclear, either Home123 or GMAC is alleged to have later transferred the note to another entity, UBS Real Estate Securities, Inc. (“UBS“), that, in turn, delivered the note to Eastern. We review the district court‘s disposition of the cross-motions for summary judgment de novo, examining each party‘s motion on its merits and drawing all reasonable inferences against the party whose motion is under consideration. See
1. Standing
The district court ruled that Eastern had demonstrated a prima facie case for foreclosure by making “an initial showing of the Note and the Mortgage, both executed by Defendants [and] present[ing] evidence of Defendants’ default through failure to make loan payments as required by the Note.” Eastern Savings Bank, FSB v. Thompson, 57 F.Supp.3d at 202. Nevertheless, the district court granted summary judgment to defendants based on Eastern‘s failure to demonstrate standing. In reaching this conclusion, the
Under New York law, “[a] plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note.” Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 981, 19 N.Y.S.3d 543, 544 (2d Dep‘t 2015). Notably, “[e]ither a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.” U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578, 580 (2d Dep‘t 2009); accord Aurora Loan Servs. v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 615, 34 N.E.3d 363 (2015). Thus, although assignment of a mortgage without the accompanying note does not provide the assignee with a right to the debt, the delivery or assignment of a note without the accompanying mortgage transfers the debt and can confer standing on the recipient. See Aurora Loan Servs. v. Taylor, 25 N.Y.3d at 361, 12 N.Y.S.3d at 615, 34 N.E.3d at 363; Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532, 537 (2d Dep‘t 2011); U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d at 580; cf.
“Holder status is established where the plaintiff possesses a note that, on its face or by allonge, contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff.” Wells Fargo Bank, NA v. Ostiguy, 127 A.D.3d 1375, 1376, 8 N.Y.S.3d 669, 671 (3d Dep‘t 2015); see also Bank of Am., N.A. v. Kyle, 129 A.D.3d 1168, 1169, 13 N.Y.S.3d 253, 255 (3d Dep‘t 2015); Mortgage Elec. Registration Sys. v. Coakley, 41 A.D.3d 674, 674, 838 N.Y.S.2d 622, 623 (2d Dep‘t 2007);
Applying the cited New York law to the record, we conclude that the district court erred in granting summary judgment to defendants based on Eastern‘s lack of standing. The record admits no genuine dispute that Eastern possessed the original note, indorsed in blank, prior to commencing this action in March 2012. See Eastern Savings Bank, FSB v. Thompson, 57 F.Supp.3d at 200, 204.1 The affidavits
Nor does Lasalle Bank Nat‘l Ass‘n v. Ahearn, 59 A.D.3d 911, 875 N.Y.S.2d 595 (3d Dep‘t 2009), support the district court‘s conclusion that Eastern could not “establish standing to bring the action unless it can show valid chain of title through physical delivery of Assignment [from Home123 to GMAC].” Eastern Savings Bank, FSB v. Thompson, 57 F.Supp.3d at 204. Lasalle concerned the transfer of a note to the plaintiff by written assignment, not physical delivery. See 59 A.D.3d at 912, 875 N.Y.S.2d at 597. Here, the note was not assigned to Eastern but physically delivered to it. When a plaintiff demonstrates that upon commencement of the action it possessed a note, indorsed in blank, by way of physical delivery, New York has consistently found the plaintiff to have sufficient interest in the enforcement of the debt to support standing in a foreclosure action. See, e.g., Aurora Loan Servs. v. Taylor, 25 N.Y.3d at 361-62, 12 N.Y.S.3d at 615-16, 34 N.E.3d at 363; Deutsche Bank Nat‘l Tr. Co. v. Monica, 131 A.D.3d at 738-39, 15 N.Y.S.3d at 865; Nationstar Mortg., LLC v. Davidson, 116 A.D.3d 1294, 1295-96, 983 N.Y.S.2d 705, 707 (3d Dep‘t 2014); Mortgage Elec. Registration Sys. v. Coakley, 41 A.D.3d at 674, 838 N.Y.S.2d at 623. Accordingly, the award of summary judgment to defendants based on Eastern‘s lack of standing is vacated.2
2. Denial of Summary Judgment to Eastern
Eastern urges this court to reverse the district court‘s denial of its motion for summary judgment and to direct the entry of summary judgment in its favor. We decline to grant this relief before the district court considers Eastern‘s motion on its merits, which it did not do once it determined that Eastern lacked standing. See Beason v. United Techs. Corp., 337 F.3d 271, 274 (2d Cir.2003) (“As a general rule, a federal appellate court does not consider an issue not passed upon below.” (internal quotation marks omitted)). When a district court declines to address an issue, “it is our distinctly preferred practice to remand such issues for consideration by the district court in the first instance,” particularly when the matter has “been briefed and argued only cursorily in this Court.” Schonfeld v. Hilliard, 218 F.3d 164, 184 (2d Cir.2000).
Accordingly, we vacate the denial of Eastern‘s motion for summary judgment based on its lack of standing and we remand for consideration of the motion‘s merits by the district court.3
For the foregoing reasons, we hereby VACATE the district court‘s award of summary judgment to defendants Ebony Thompson and Katrina Breedy and its denial of summary judgment to Eastern Savings Bank, and we REMAND the case for further proceedings consistent with this order.
UNITED STATES of America, Appellee, v. Lamont ROLLE, aka Anthony Rolle, aka Bam, Defendant--Appellant.
No. 14-4322-cr.
United States Court of Appeals, Second Circuit.
Nov. 24, 2015.