Green Tree Servicing LLC v. Bormann

located in the Town of Lake Luzerne, Warren County.^[1] Defendants ceased making payments on the note in July 2009, ánd, in March 2014, plaintiff commenced this mortgage foreclosure action. Defendants joined issue and asserted various affirmative defenses, including that plaintiff lacked standing to commence this action. Plaintiff thereafter moved for, as relevant here, summary judgment and for the appointment of a referee to compute the total amount due and owing. Defendants opposed the motion, arguing that plaintiff failed to produce sufficient evidence to establish its standing, and cross-moved for an order compelling plaintiff to comply with certain outstanding discovery demands. Supreme Court granted plaintiffs motion and denied defendants’ cross motion, and defendants appeal.

We affirm. Plaintiff established its prima facie entitlement to summary judgment as a matter of law by producing the mortgage, unpaid note and evidence of defendants’ default (see Bank of N.Y. Mellon v Rutkowski, 148 AD3d 1341 , 1341 [2017]; JP Morgan Chase Bank, N.A. v Hill, 133 AD3d 1057 , 1057 [2015]; Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375 , 1376 [2015]). Given that defendants raised the issue of standing as an affirmative defense, plaintiff was required to further demonstrate that, at the time that the action was commenced, it was the holder or assignee of the mortgage and the holder or assignee of the underlying note (see Bank of N.Y. Mellon v Cronin, 151 AD3d 1504 , 1505-1506 [2017]; U.S. Bank N.A. v Carnivale, 138 AD3d 1220 , 1220-1221 [2016]). “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, and the mortgage passes with the debt as an inseparable incident” (Onewest Bank, F.S.B. v Mazzone, 130 AD3d 1399 , 1400 [2015] [internal quotation marks and citations omitted]; accord U.S. Bank N.A. v Carnivale, 138 AD3d at 1221 ; see JP Morgan Chase Bank, N.A. v Venture, 148 AD3d 1269 , 1270 [2017]).

Plaintiff alleged in its complaint that it was the holder of the note and attached thereto a certified copy of the note, endorsed in blank, on which an attorney admitted to practice in this state certified that the copy of the note had been compared to the original and was found to be a true and accurate copy (see JPMorgan Chase Bank, N.A. v Verderose, 154 AD3d 1198 , 1200 [2017]; JP Morgan Chase Bank, N.A. v Venture, 148 AD3d at

1270-1271 ). In support of its motion, plaintiff also relied on the sworn affidavit of Chelsie Hall, a document execution specialist employed by plaintiff.^[2] Hall stated that she was familiar with plaintiff’s record-keeping systems, that she personally examined plaintiff’s financial books and business records, which were kept and maintained by plaintiff in the ordinary course of business, and that, as of the date of commencement, plaintiff was and remained in possession of the note. The certified copy of the note, together with Hall’s affidavit, was sufficient to establish, prima facie, that plaintiff was the holder of the note prior to and at the time that this action was commenced in March 2014 and, therefore, had standing to bring this action (see JPMorgan Chase Bank, N.A. v Verderose, 154 AD3d at 1200 ; JP Morgan Chase Bank, N.A. v Venture, 148 AD3d at 1270-1271 ; U.S. Bank N.A. v Carnivale, 138 AD3d at 1221 ; compare Bank of Am., N.A. v Kyle, 129 AD3d 1168 , 1169 [2015]).

In opposition, defendants failed to come forward with any evidence raising a triable issue of fact as to whether plaintiff was the holder of the note and the mortgage at the time that it commenced this action (see Bank of N.Y. Mellon v Cronin, 151 AD3d at 1507 ; U.S. Bank N.A. v Carnivale, 138 AD3d at 1222 ; Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737 , 740 [2015]). While defendants argue that Supreme Court prematurely granted summary judgment to plaintiff, without allowing them the opportunity to obtain full and complete disclosure, defendants did not offer anything more than surmise and conjecture to support their contention that the requested disclosure would reveal a triable issue of fact as to plaintiff’s holder status (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023 , 1026 [1983]; Bank of N.Y. Mellon v Cronin, 151 AD3d at 1507 ; Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d 1284 , 1288 [2009]).^[3] Nor is, as defendants contend, a triable issue of fact raised by the fact that Mayflower assigned defendants’ mortgage to two different entities, before the mortgage was ultimately assigned to plaintiff. In this regard, we emphasize