PNC Bank Natl. Assoc. v Giovanni | NYSC - Did not demonstrate that the note was physically delivered or assigned prior to action


PNC Bank Natl. Assoc. v Giovanni | NYSC – Did not demonstrate that the note was physically delivered or assigned prior to action

PNC Bank Natl. Assoc. v Giovanni | NYSC – Did not demonstrate that the note was physically delivered or assigned prior to action

Note: See below that MERS is named as a defendant AND I bet MERS was involved in assigning these mortgages. See any conflicts?



PNC Bank National Association,


Michael Sam Giovanni dk/a Michael Sangiovanni,
Karla Manzueta, HSBC Mortgage Corporation
(USA), Mortgage Electronic Registration Systems,

‘This is an action to foreclose a mortgage on premises known as 14 Gregory Lane, Central
Islip. New York. On July 26, 2005, defendants Sangiovanni and Karla Marizueta (Manzueta)
executed a fixed rate note in favor of Nationpoint a Division of Nat. City Bank of IN (Nationpoint)
agreeing to pay 9;220,000.00 at the yearly rate of 5.9990 percent. The note presented to the court
contains neither an indorsement nor an allonge. On July 27, 2005, defendants Sangiovanni and
Manzueta executed a first mortgage in the principal sum of $220,000.00 on their home, the subject
property. The mortgage was recorded on August 1 1. 2005 in the Suffolk County Clerk’s Office.
Thereafter, it is alleged that the mortgage was transferred by assignment of mortgage dated
December 2, 2005 from Nationpoint a Division of National City Bank of IN to First Franklin
Financial Corporation and recorded with the Suffolk County Clerk’s Office on March 8,2006’. On
May 26, 2011, the mortgage was transferred by assignment of mortgage from First Franklin
Financial Corporation to PNC Bank, National Association. SPS Select Portfolio Servicing, Inc.,
attorney-in-fact for plaintiff, sent a notice of default dated January 3 1,201 1 to defendants stating that
Sangiovanni and Manzueta had defaulted on their mortgage loan and that the amount past due was
$1 1.386.93.

As a result of defendants’ continuing default, plaintiff commenced this foreclosure action
on June IO, 201 I!. In its complaint, plaintiff alleges in pertinent part that defendants breached their
obligations under the terms of the note and mortgage by failing to make monthly payments
commencing on September 1,20 10, and each subsequent month thereafter, and that it is the current
holder of the note and mortgage. Defendant Sangiovanni answered by entering a denial and asserting
five affirmative defenses.

The Court’s computerized records indicate that a foreclosure settlement conference was held
on March 28, 2012 at which time this matter was referred as an IAS case since a resolution or
settlement had not been achieved. Thus, there has been compliance with CPLR 3408 and no further
settlement conference is required.

Plaintiff now moves for summary judgment on its complaint contending that defendants
Sangiovanni and Manzueta failed to comply with the terms of the loan agreement and mortgage, that
the answer of defendant Sangiovanni raised no issues of fact for trial and, that no valid affirmative
defenses were raised by the defendant. In support of its motion, plaintiff submits among other
things: the sworn affidavits of David Coleman, document control officer for Select Portfolio
Servicing, Inc.; the affirmation of Ted Eric May, Esq.; the summons and verified complaint;
defendant’s verified answer; the note, mortgage and assignment of mortgage dated May 26,20 1 1 ;
a notice of default; notices pursuant to RPAPL §§ 1320, 1303 and 1304; the affirmation of Ted Eric
May, Esq. pursuant to the Administrative Order of the Chief Administrative Judge of the Courts
(A0143 1/11); affidavits of service for the summons and complaint; an affidavit of service of the
instant summary judgment motion upon the defendants; and a proposed order appointing a referee
to compute.

Defendant, in opposition to the summary judgment motion contends, inter alia, that PNC
Bank lacks standing to foreclose on defendant’s mortgage.

“[In an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law
through the production of the mortgage, the unpaid note, and evidence of default” (see Republic
Natl. Bank of N. Y. v O’Karze, 308 AD2d 482,482,764 NYS2d 635 [2d Dept 2OQ31; Village Bank
t’ Wild Onks Ho,lding, 196 AD2d 8 12,60 1 NYS2d 940 [2d Dept 19931; see also Argent Mtge. Co.,
LLC VMentesann, 79 AD3d 1079,915 NYS2d 591 [2d Dept 20101). Once a plaintiff has made this
showing. the burden then shifts to defendant to produce evidentiary proof in admissible form
sufficient to require a trial of their defenses (see Aames Funding Corp. v Houston, 44 AD3d 692,
843 NYS2d 660 [2d Dept 20071; Household Fin. Realty Corp. of New York v Winn, 19 AD3d 545,
796 NYS2d 533 [2d Dept 20051; see also Washington Natl. Bank v Valencia, 92 AD3d 774,939
NYS2d 73 [2d Dept 20121). However, “foreclosure of a mortgage may not be brought by one who
has no title to it” (see US Bank, Nat Ass’n v Slzarif, 89 AD3d 723,933 NYS2d 293 [2d Dept 201 I];
Kluge v Fugazy, 145 AD2d 537,536 NYS2d 92 [2d Dept 19881).

Where, as here, standing is put into issue by the defendant, the plaintiff is required to prove
it has standing in order to be entitled to the relief requested (see Deutsclze Bank Natl. Trust Co. v
€faller, 100 AD3d 680,954 NYS2d 55 1 [2d Dept 201 11; USBank, NA v Collyntore, 68 AD3d 752,
890 NYS2d 578 [2d Dept 20091; Wells Fargo Bank Minn., NA vMastropaolo. 42 AD3d 239,837
NYS2d 247 [2d Dept 20071). In a mortgage foreclosure action “[a] plaintiff has standing where it
is the holder or assignee of both the subject mortgage and of the underlying note at the time the
action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843,939 NYS2d 120 [2d Dept
20121; US Bank, NA v Collymore, 68 AD3d at 753; Countrywide Home Loans, Inc. v Gress, 68
AD3d 709, 888 NYS2d 914 [2d Dept 20091). “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
to transfer the obligation” (HSBC Bank USA v Hernandez, 92 AD3d 843).

In the matter at hand, plaintiff has failed to establish, prima facie, that it had standing to
commence this action. The evidence submitted by the plaintiff in support of its motion did not
demonstrate that the note was physically delivered or assigned to it prior to the commencement of
the action. The affidavit from David Coleman, document control officer for Select Portfolio
Servicing, Inc,, did not give any factual details based on personal knowledge of a physical delivery
or assignment of the note and thus, failed to establish possession of the note prior to commencing
this action (HSBC Bank USA v Hernandez, 92 AD3d 843; Citimortgage, Inc. v Stosel, 89 AD3d
887, 934 NYS2d 182 [2d Dept 201 I]). Conclusory boiler plate statements such as “[plaintiff is the
holder and owner of the subject note” will not suffice when standing is raised as a defense (see
Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636,93 1 NYS2d 630 [2d Dept 201 11; Aurora
Loan Services, LLC v Weisblunz, 85 AD3d 95, 923 NYS2d 609 [2d Dept 201 11). Furthermore,
plaintiff has failed to establish through demonstrable evidence a chain of title to the note and related
mortgage that plaintiff seeks to foreclose on. As such, plaintiff has no foundation in law or fact to
foreclose on the mortgage.

Based upon the foregoing, the motion for summary judgment against defendant
Sangiovanni, to strike his answer, granting a default judgment in favor of plaintiff and for an order
of reference is denied without prejudice as set forth above.

The Court grants plaintiffs request to amend the caption by striking from it the names of
defendants “JOHN DOE #1 ” through “JOHN DOE #12”.

Plaintiff is directed to serve a copy of this order amending the caption of this action upon the
Calendar Clerk of this Court.



Plaintiff has failed to submit evidence of the December 2, 2005 assignment of mortgage
and proof of filing with the Suffolk County Clerk’s Office in its motion before the Court.

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