Wells Fargo Bank. N.A. v Belknap | NYSC - the assignment of the Mortgage, which the Bank acknowledges that it may not rely on to demonstrate ownership of the Note, is insufficient because on its face it only assigns the Mortgage.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

---------------------------------------------- Wells Fargo Bank. N.A., Plaintiff. -against- John C. Belknap alk/a John Belkna; M. Alison Belknap a/k/a M. Belknap; et aI., Defendants. <snip> Plaintiffs Standing to Bring This Action Where, as here, standing is put into issue by defendants, plaintiff must prove its standing in order to be entitled to relief (U.S. Bank. N.A. v Adrian Collymore, 68 AD3d 752 [2d Dept 2009)). In a mortgage foreclosure action, "a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" (Bank of New York v Silverberg, 86 AD3d 274, 279 [2d Dept 2011]). Once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note (Mortgage Elec. Registration Sys" Inc. v. Coakley, 41 A.D.3d 674, Bank of New York v Silverberg, 86 AD3d 274, 280 [2d Dept 201 1)). By contrast, "a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it. A mortgage is merely security for a debt or other obligation and cannot exist independently of the debt or obligation. Consequently, the foreclosure of a mortgage cannot be pursued by one who has not demonstrated "right to the debt" (Bank of New York v Silverberg, 86 AD3d 274, 280 [2d Dept 2011]). Moreover, an assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery (LaSalle Bank Natl. Assn. v. Ahearn, 59 A.D.3d 911, 912, [3d Dept 2009]). Plaintiff establishes its lawful status as assignee, either by written assignment or physical delivery, prior to the filing of the complaint (Aurora Loan Services, LLC v Weisblum, 85 AD3d 95 [2d Dept 20 ID. Written assignment of the underlying note or physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation (HSBC Bank USA, Nat. Ass'n v Gilbert, 120 AD3d 756, 757 [2d Dept 2014]), An assignment ofa mortgage without assignment of the underlying note or bond is a nullity. and no interest is acquired by it (HSBC Bank USA v, Hernandez, 92 A,D,3d 843 [2d Dept 2012]), Further. the affidavit from the plaintiff or its servicing agent must include specific factual details of a physical delivery of the note to establish that the plaintiff had physical possession of the note prior to commencing an action (HSBC Bank USA v. Hernandez. 92 AD3d 843. 844. (2d Dept 2012]). If the plaintiff asserts standing based upon a written assignment executed after the commencement of the action. the plaintiff must also prove physical delivery of the note before commencement (Wells Fargo Bank. N.A. v. Marchione. 69 AD3d 204, 210. [2d Dept. 2009)). Indeed, where the plaintiff "establish[ esJ its standing as the holder of the note and mortgage by physical delivery prior to commencement of the action," it is unnecessary to "address the validity of [a] subsequently executed document assigning the mortgage and note" (Deutsche Bank Natl. Trust Co. v Whalen. 107 AD3d 931,932 [2d Dept 2013]). In considering standing, a court must consider the negotiability of the promissory note. Pursuant to ucc ~ 3-202, negotiation is defined as the transfer of an instrument in such form that the transferee becomes a holder. ucc ~ 3-204 provides that a special indorsement specifies the person to whom or to whose order the instrument is payable (Ucc ~ 3-204[1]). Pursuant to ucc ~3-204(2): "An indorsement in blank specifies no particular indorsee and may consist of a mere signature. An instrument payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed." The indorsement must be made either on the face of the note or on an allonge so firmly affixed to the note as to become a part thereofUeC Section 3-202(20). [...]