HSBC Bank USA, NA v. HallsHSBC Bank USA, NA v. Halls
In an action to foreclose a mortgage, the defendant Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit, appeals from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated November 12, 2013, as denied that branch of its motion which was pursuant to
Ordered that
The defendant Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit (hereinafter MERS), failed to assert, in its answer or in a pre-answer motion to dismiss the complaint pursuant to
An argument that a plaintiff lacks standing, if not asserted in the answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to
A plaintiff in a mortgage foreclosure action has standing where it is 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 [2015]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754 [2009]). Either 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 (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361; U.S. Bank, N.A. v Collymore, 68 AD3d at 753-754).
Contrary to MERS’ contention, the Supreme Court providently exercised its discretion in denying its motion for leave to amend its answer to add the defense that the plaintiff lacked standing. As the Supreme Court properly determined, such a defense was patently devoid of merit (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355 [2015]; Bank of N.Y. Mellon v Aquino, 131 AD3d at 1187; Kondaur Capital Corp. v McCary, 115 AD3d 649, 650 [2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 932 [2013]).
MERS’ remaining contentions are without merit or academic in light of our determination.
Accordingly, the Supreme Court did not improvidently exercise its discretion in denying that branch of MERS’ motion which was pursuant to