Case Information
‐ (L) UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE WITH THE NOTATION " SUMMARY ORDER "). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
At stated term United States Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City York, th day September, two thousand nineteen. PRESENT: RICHARD C. WESLEY,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
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GUSTAVIA HOME, LLC,
Plaintiff ‐ Appellee (L); ‐ (Con)
ROBERT RUTTY,
Defendant Appellant
JOHN DOE, through said persons or having or claimed right,
title interest mortgaged premises
herein, their respective names presently
unknown Plaintiff,
Defendants
SLF NEW YORK HOLDINGS, LLC, HAMPTON
PARTNERS LLC,
Intervenors ‐ Defendants .
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FOR PLAINTIFF ‐ APPELLEE: Alan H. Weinreb, The Margolin & Weinreb
Law Group, LLP, Syosset, New York. DEFENDANT APPELLANT: Robert R. Rutty, pro se Wadsworth, Illinois. Appeal from a judgment United States District Eastern District New York (Cogan, J .).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED judgment AFFIRMED
Defendant appellant Robert Rutty, proceeding pro se appeals from a judgment entered June ordering property be foreclosed pursuant a May decision and granting favor plaintiff ‐ appellee ( ʺ ʺ ) and a May denying moot cancel expunge deeds. argues erred granting favor Gustavia. assume ʹ familiarity with underlying facts, procedural history, issues on appeal. obtained $134,000 loan People Home Loan, Inc. People ) property he owned City. He then executed delivered Choice, successors, assigns. *3 executed mortgage granting Mortgage Electronic Registration Systems Inc. MERS ), nominee for People s Choice, second mortgage on the Property. MERS was given the right foreclose on and sell the Property and discharge the mortgage. People filed for bankruptcy in and was dissolved in 2008. Gustavia was assigned the mortgage in March and the note was transferred simultaneously. After Rutty failed pay Gustavia brought this diversity against foreclose property.
Gustavia moved for in December 2016. In support motion provided affidavit, dated December from managing member who attested that was owner and holder relevant note and mortgage had been physical 2015. opposed granted judgment. first appeal, argued, relevant part, that pursue He contended assignment mortgage invalid had filed for bankruptcy; assignment interest would required approval from court; regard. vacated remanded further proceedings, reasoning apparent record whether [People *4 Choice ʹ s] bankruptcy impacted purported transfers debt. ʺ v. F. App ʹ x (2d Cir. 2017) (summary order). We specified that we did not hold that ʺ as matter law, but simply that this record is not clear, considering [People ʹ s ʹ s] bankruptcy, that has standing. Id . remand, produced order court dated
April authorizing sell one more bulk sales in ordinary course business, loans owned Debtors [(People Choice)]. ʺ Thereafter, again moved judgment, which granted. appeal that is us now.
I. Applicable Law review grant de novo, ʺ resolv[ing] all ambiguities draw[ing] all inferences against moving party. ʺ Garcia Hartford Police F.3d (2d Cir. 2013) (per curiam).
ʺ Summary proper only when, construing light most favorable non movant, ʹ there genuine dispute any material *5 movant is entitled to as a matter of law. ʹʺ Doninger v. Niehoff , 642 F.3d 344 (2d Cir. (quoting Fed. Civ. P. 56(a)). a foreclosure action, under law, a plaintiff establishes its
prima facie entitlement to by producing of the mortgage, the note, the defendant default. See, e.g., Wells Fargo Bank, N.A. v. Walker (3d Dep t 2016); see R.B. Ventures, Ltd. v. Shane F.3d n.2 (2d Cir. 1997). Where, as here, the defendant contests standing to foreclose, ʺ the plaintiff must prove standing as part of prima facie showing. ʺ JPMorgan Chase Nat l Ass n v. Weinberger 2016). ʺ A plaintiff establishes standing a mortgage action demonstrating that, when the action commenced, either the holder or assignee the underlying note. ʺ Id. (internal quotation marks omitted). ʺ [U]nless the agree the transferor to retain ʺ plaintiff the commenced sufficient demonstrate passes incident note. Aurora Loan Servs., LLC Taylor N.Y.3d (2015). If plaintiff establishes prima facie case, burden then shifts defendant demonstrate existence triable issue as bona fide defense action, such waiver, estoppel, bad faith, fraud, oppressive or unconscionable conduct part plaintiff. Capstone Bus. Credit, *6 Imperia Family Realty, LLC 70 A.D.3d 883 (internal quotation marks omitted).
II. Application
Gustavia established prima facie entitlement to summary by attaching to complaint unpaid note, evidence Rutty default. See Walker at 987. It provided affidavit demonstrating it note months initiating Aurora Loan Servs., LLC N.Y.3d at 62. remand, provided authorizing to note prior dissolution 2008. This conclusively addressed standing argument. As evidence support prima facie entitlement judgment, which was not countered evidence create triable issue bona fide defense action, ʺ was properly awarded judgment. Capstone Bus. Credit, 883. principal arguments ‐‐
because it did not state where note was stored between did not provide physically received ‐‐ meritless. required prove where located between an affidavit stating physical possession of prior initiating foreclosure U.S. Bank, N.A. Collymore [P]hysical delivery of prior commencement sufficient obligation, passes with debt an inseparable incident. ). Further, [t]here simply requirement entity possession negotiable instrument been endorsed blank must establish how came into instrument be able enforce it. Weinberger (citing UCC 204[2]).
* * * considered remaining arguments conclude they
without merit. Accordingly, we AFFIRM court. THE COURT:
Catherine O = Hagan Wolfe, Clerk
[1] Additionally, although appealed denying his cancel expunge deeds, he failed raise any argument brief concerning issue. Consequently, he waived challenge order. Moates Barkley F.3d Cir. [W]e . . . normally will [] decide issues party fails raise . . appellate brief. ).