U.S. Bank N.A. v Friedman | NYSC - Plaintiff having failed to establish that it owned the Note on the date this case was commenced, it does not have standing to maintain this action
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR MAS TR ADJUSTABLE RA TE
MORTGAGES TRUST 2007-1, MORTGAGE PASSTHROUGH
CERTIFICATES, SERIES 2007-1,
Plaintiff,
-against-
LEONARD FRIEDMAN, KARYN FRIEDMAN,
NATIONAL CITY BANK, and "JOHN DOE#l"
through "JOHN DOE#lO" the last ten names
being fictitious and unknown to the Plaintiff, the
person or parties intended being the person or parties,
if any, having or claiming an interest or lien upon
the mortgaged premises described in the complaint,
Defendants.
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LOEHR, J.
Index No.: 032128/11
In this foreclosure action, the Court, in a Decision and Order dated June 28, 2013, having
granted the Plaintiff summary judgment as to the execution and delivery of the Note and
Mortgage and the Defendants' default thereunder, but have denied summary judgment on the
issue of Plaintiffs standing- specifically, when the Original Note, indorsed by the original
lender, had been delivered to Plaintiff1
- the matter was tried before me on February 28, 2014,
and the Plaintiff called as its sole witness, Rashad Blanchard, an employee of Ocwen, which
subsequently became the servicer of this loan. Mr. Blanchard testified that Plaintiff had
possession of the original indorsed Note based on: 1) his having examined it approximately 30
days ago and 2) that the original indorsed Note had been delivered to Plaintiff on April 16, 2007
based on the records of the original servicer, Well Fargo Bank. As Plaintiff failed to lay a proper
foundation for the admission of the Well Fargo Bank records, they are inadmissible hearsay
(Unifund CCR Partners v Youngman, 89 AD3d 1377, 1377-78 [4th Dept 2011]; Palisades
Collection, LLC v Kedik, 67 AD3d 1329 [4th Dept 2009]; accord JP Morgan Chase Bank, NA. v
Rads Group, Inc., 88 AD3d 766 [2d Dept 2011]) and all that has been established is that Plaintiff
had possession of the original indorsed Note some 30 days ago - long after this case was
commenced. Thus, Plaintiff having failed to establish that it owned the Note on the date this case
was commenced, it does not have standing to maintain this action and the Complaint is dismissed
on that basis.
This constitutes the decision and order of the Court.
Dated: New City, New York
March 21, 2014
HINSHAW & CULBERTSON LLP
Attorneys for Plaintiff
780 Third Avenue
New York, NY 10017
LAW OFFICES OF ALLEN A. KOLBER, ESQ.
Attorneys for the Borrowers
134 Rt. 59, Suite A
Suffern, NY 10901
1 With respect to standing, where, as here, a defendant has put standing in issue, the
plaintiff must prove its standing, that is that it had been assigned the mortgage and note prior to
the commencement of the foreclosure (Deutsche Bank National Trust Company v Haller (100
AD3d 680, 682 [2d Dept 2012]). A valid assignment can be effectuated by a written assignment
of the mortgage and note executed by one with authority, or by indorsement and delivery of the
note - the mortgage following the note by operation of law (Bank of New York v Silverberg, 86
AD3d 274 [2d Dept 2011]; US. Bank, NA. v Collymore, 68 AD3d 752 [2d Dept 2009]).
Here, the documents show that MERS purported to assign the Note and Mortgage on
behalf of ABC to Plaintiff on August 1 7, 2011. As MERS had no apparent authority to assign the
Note, this assignment assigned nothing (Bank of New York v Silverberg, 86 AD3d 274 [2d Dept
274 [2d Dept 2011]; Aurora Loan Services, LLC v Weisblum (85 AD3d 95 [2d Dept 2011]).
Plaintiff, however, does not now rely on this written assignment but on an assignment by
delivery of the Note under an undated indorsement prior to the commencement of the case. In
support thereof, Plaintiff has submitted the Note, indorsed by an officer of ABC, and the
Affidavit of an Assistant Vice President of American Home who avers, "based on the books and
records of Plaintiff and [American Home]," that the indorsed Note had been delivered to Plaintiff
"since on or before January 16, 2007." These records have not been submitted nor an explanation
why, if they did, Plaintiff felt the need to do a written assignment in 2011.
Deutsche Bank National Trust Company v Haller (100 AD3d 680, 682 [2d Dept 2102])
now requires more stringent proof where a plaintiff is trying to prove standing by delivery of the
note under an undated indorsement, particularly where the plaintiff's conduct has been
inconsistent with such asserted prior assignment. Thus, in Haller, where the plaintiff was
asserting standing by virtue of a note delivered under an undated indorsement, the Second
Department said:
"Here, the evidence submitted by the Plaintiff in support of its motion did not
demonstrate that the note was physically delivered to it prior to the comrnencernent of the
action. The affidavit from the plaintiffs servicing agent did not give any factual details of
a physical delivery of the note and, thus failed to establish that the plaintiff had physical
possession of the note prior to commencing this action."
