HSBC Bank USA v San-Miguel | NYSC - a second allonge is inexplicably submitted, same being apparently attached to the defective written MERS assignment and not to the note, as the terms of the allonge – and established case and statutory
NEW YORK SUPREME COURT - QUEENS COUNTY
HSBC BANK USA, etc., Plaintiff(s),- against -
ROBERT SAN-MIGUEL, et al., Excerpt: Plaintiff has failed to meet its burden in order to properly confer its standing. Initially, plaintiff’s reliance upon the written assignment is insufficient since plaintiff failed to demonstrate that MERS was either the holder or assignee of the note when the instrument was purportedly assigned by the instrument dated September 18, 2009, or that it had the authority to execute assignments on behalf of the originator of the loan (see Homecomings Financial, LLC v Guldi, 108 AD3d 506 [2013]; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909 [2013]; Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d 680 [2012]; Bank of New York v Silverberg, 86 AD3d 274 [2011]). Furthermore, Ms. Vera’s affidavit, other than her mere declaration that she knows plaintiff has been assigned the note – without any detail as to, inter alia, the date of the assignment – it would appear that her knowledge stems, at least in part, from the written assignment, said assignment being defective for the reasons noted, supra. To the extent she relies on the affirmation of plaintiff’s counsel, plaintiff’s counsel has not demonstrated personal knowledge of when plaintiff came into possession or ownership of the loan documents. Moreover, while it is noted that plaintiff may rely on physical delivery of the note alone, the fact that: (1) the allonge following the note is undated; (2) Ms. Vera is silent on the circumstances surrounding delivery of the note (see U.S. Bank Nat. Assn. v Faruque, 120 AD3d 575 [2014]; Homecomings Financial, LLC v Guldi, 108 AD3d at 509; HSBC Bank USA v Hernandez, 92 AD3d 843 [2012]); and (3) a second allonge is inexplicably submitted, same being apparently attached to the defective written assignment and not to the note, as the terms of the allonge – and established case and statutory law (see e.g. UCC § 3-202 [2]) – require, warrant denial of the motion for summary judgment. Even assuming the second allonge were sufficient, plaintiff presents no proof that Ocwen had the authority to execute same on Delta’s behalf. Indeed, the only power of attorney provided was the one as it relates to plaintiff. Notwithstanding issues of standing, plaintiff has not established that it complied with certain conditions precedent to suit. Namely, defendants, in their answer, denied paragraph ninth of the complaint which alleges that no payment was made, despite demand. The mortgage requires the lender, prior to declaring the entire balance due and commencing foreclosure, send a notice of default which, inter alia, provides for an option to cure the default. Plaintiff has not submitted proof that such a notice was sent. Ms. Vera’s contention that “[i]ndeed, an acceleration letter was sent” is insufficient to prove same. Her contention that follows, that “the declaration to accelerate contained in this very paragraph of the complaint serves, as a matter of law . . . as that very election to accelerate,” is without foundation. Finally, it is noted that, in opposition to the motion, defendants point out that plaintiff, a trust, may not have complied with, inter alia, its Mortgage Loan Sale and Contribution Agreement regarding transfer of ownership of the subject loan documents. [...]