US Bank N.A. v Fednard | NYSC - the plaintiff successfully rely upon the assignment of the mortgage attached to the moving papers as said assignment did not include an assignment of the mortgage note

SUPREME COURT- STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY US BANK NATIONAL ASSOCIATION, as Trustee for JP MORGAN MORTGAGE TRUST 2007-S3, Plaintiff, -against- LUC A. FEDNARD, SABINE M. FEDNARD, JPMORGAN CHASE BANK, NA, "JOHN DOES" : and "JANE DOES'', said names being fictitious parties intended being possible tenants or occupants : of premises, and corporations, other entities or persons who claim or may claim a lien against the premises, Defendants. Excerpt: In this mortgage foreclosure action, the plaintiff moves for summary judgment dismissing the affirmative defenses and counterclaims asserted in the answer served by the obligor/mortgagor defendants, Fednard, and for summary judgment in favor of the plaintiff on its complaint. The plaintiff further demands an order fixing the defaults in answering of the remaining defendants who were served with process and, among other things, the appointment of a referee to compute. The motion is opposed by the answering defendants in cross moving papers wherein they seek to compel the plaintiff to comply with outstanding discovery demands and for leave to serve an amended answer. The plaintiffs motion ( #001) is denied. The moving papers failed to demonstrate, prima facie that the affirmative defenses, such as the standing defenses asserted in the answer of the defendants Fednard, are, as a matter of law, without merit and the plaintiff's entitlement to judgment on its complaint for foreclosure and sale against said defendants. Review of the affidavit of Tisha Denney, Assistant Secretary to the plaintiff's attorney-in-fact and servicer and the other attachments to the moving papers reveal that they are insufficient to establish a prima facie entitlement to the dismissal of the plaintiff's affirmative standing defenses as particulars regarding note delivery were not advanced in the affidavit of the plaintiff's servicer or other its agents (see Deutsche Bank Natl. Trust Co. v Haller, I 00 AD3d 680, 954 NYS2d 551 [2d Dept 2012]; HSBC Bank USA v Hernandez, 92 AD3d 843, 939 NYS2d 120 [2d Dept 2012]; see also Bank of America, N.A. v Paulsen, 125 AD3d 909, 2015 WL 775197 [2d Dept2015]; Wells Fargo Bank, NA vBurke, 125 AD3d 765, 2015 WL 542140 [2d Dept 2015]; U.S. Bank Natl. Ass'n v Faruque, 120 AD3d 575, 575, 991NYS2d630 [2d Dept 2015]; U.S. Bank Natl. Ass'n v Weinman, 123 AD3d 1108, 2014 WL 7392278 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636, 931NYS2d630 [2d Dept 2011]; cf.,Aurora Loan Serv., LLCv Taylor, 114 AD3d 627, 980 NYS2d 475 [2d Dept 2014]; Wells Fargo Bllnk, N.A. v Arias, 121 AD3d 973, 995 NYS2d 118 (2d Dept 2014]; Central Mtge. Co. v McClelland, 119 AD3d 885, 991 NYS2d 87 [2d Dept 2014]; see also Deutsche Bank Natl. Trust Co. v Whalen , 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]). The assertion by plaintiff's counsel set forth in ~ 43 of his affirmation is woefully insufficient to warrant dismissal of the defendants ' standing defenses as a matter of law. Nor may the plaintiff successfully rely upon the assignment of the mortgage attached to the moving papers as said assignment did not include an assignment of the mortgage note (see Bank of America, N.A. v Paulsen, 125 AD3d 909, 2015 WL 775197 [2d Dept 2015]; U.S. Bank Natl. Ass'n v Faruque, 120 AD3 575, 575, 991NYS2d 630 [2d Dept 2014] ; Bank of New York Mellon v Gtlles, 116 AD3d 723, 982 NYS2d 911 [2d Dept 2014]; US BankofNYvSilverberg, 86 AD3d 274, 280, [* 2] 926 NYS2d 532 [2d Dept 2011]) .. The plaintiffs motion is thus denied without regard to the sufficiency of the defendants' opposing papers. [...]