Wells Fargo Bank NA v Viecco | NYSC - did not adequately demonstrate that the note was physically delivered to it prior to the commencement of the action
SUPREME COURT - STA TE OF NEW YORK IAS PART 39 - SUFFOLK COUNTY
WELLS FARGO BANK NA, Plaintiff, -against- RANDOLPH A. VIECCO, BOARD OF MANAGERS OF COVENTRY TOWN HOUSES, INC., and "JOHN DOE", (Said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises.) Defendants. EXCERPT: Inasmuch as the standing of the plaintiff has now been drawn into question, it was incumbent upon the plaintiff to prove such standing before being entitled to any relief (see, CitiMortgage, Inc. v Rosenthal. 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011]). The standing of a plaintiff in a mortgage foreclosure action is measured by its ownership, holder status or possession of the note and mortgage at the time of the commencement of the action (see. Bank of N. Y. v Silverberg. 86 AD3d 274. 926 NYS2d 532 [2d Dept 20 I I]: U.S. Bank, N.A. v Collymore, 68 AD3d 752. 890 NYS2d 578 [2d Dept 2009]). A mortgage ''is merely security for a debt or other obligation. and cannot exist independently of the debt or obligation" (Deutsche Bank Natl. Trust Co. v Spanos. I 02 AD3d 909, 911, 961 NYS2d 200 [2d Dept 2013] [internal quotation marks and citations omitted]). Holder status is established where the plaintiff is the special indorsee of the note or takes possession of a mortgage note that contains an endorsement in blank on its face or attached thereto. as the mortgage follows an incident thereto (see, Mortgage Elec. Registration ~1·s., Inc. v Coakley, 41 AD3d 674. 838 NYS2d 622 [2d Dept 2007]: First Trust Natl. Assn. v Meisels. 234 AD2cl-+ 14, 651 NYS2d 121 [2d Dept 1996] ). "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 lo transfer the obligation. and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore. 68 AD3d 752. sup at 754 f internal quotation marks and citations omitted]). In the instant case. the plaintiff failed to establish. prima facia. that it had standing as its evidence did not adequately demonstrate that the note was physically delivered to it prior to the commencement of the action (sec. Deutsche Bank Natl. Trust Co. v Rivas. 95 AD3d 1061. 945 NYS2d '"128 l2d Dept 2012/: HSBC Bank USA v Hernandez. 92 AD3cl 8-t3. 939 N\'S:2d 120 [::'.cl fkpt 2tl 1.2 i l. In support or the motion. the plaintiff submitted. inter alia. the affidavit of Bradley Richard a Vice President of Loan Documentation from the plaintiff. In his affidavit. Bradley alleges among other things. that the promissory note was endorsed in blank and is in the plaintiff possession. The plaintiff's representative however did not provide any factual details concerning when the plaintiff received physical possession of the note. and. thus. the plaintiff failed to establish that had it physical possession of the note prior to commencing this action (sec. Deutsche Bank .Vat/. Trust Co. v Barnett. 88 ,\f)Jd 63(1. 931 \i\S2d 630 r2d Dept 21Jl 1 j). I furthermore. in this case. the note contains two endorsements. the second of which was purportedly made by the plaintiff. Additionally. the plaintiffs officer neither addressed the relevance of the agreement between Washington Mutual Bank and Wells Fargo Funding. nor the relationship, if any. between these entities and the plaintiff. Moreover. if MERS. as nominee of Professional was not the owner of the note. as it appears. it would have lacked the authority to assign the note to plaintiff: and absent an effective transfer of the note. the assignment of the mortgage to plaintiff would be a nullity (si:c. Bank \i YS2cl 92 I 2cl Dept 1988] ). Thus. the issue of standing cannot be determined as a matter of law on this record. In view of the plaintiffs incomplete and conflicting evidentiary submissions, an issue of fact remains as to whether it had standing to commence this action. The Court now turns to the ten affirmative defenses set forth in the defendant mortgagor's original answer. [...]