Wells Fargo Bank NA v Viecco | NYSC - did not adequately demonstrate that the note was physically delivered to it prior to the commencement of the action

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Wells Fargo Bank NA v Viecco | NYSC – did not adequately demonstrate that the note was physically delivered to it prior to the commencement of the action

Wells Fargo Bank NA v Viecco | NYSC – did not adequately demonstrate that the note was physically delivered to it prior to the commencement of the action

SUPREME COURT – STA TE OF NEW YORK
IAS PART 39 – SUFFOLK COUNTY

WELLS FARGO BANK NA,
Plaintiff,

-against-

RANDOLPH A. VIECCO, BOARD OF MANAGERS OF
COVENTRY TOWN HOUSES, INC., and “JOHN
DOE”, (Said name being fictitious, it being the
intention of Plaintiff to designate any and all
occupants of premises being foreclosed herein, and any
parties, corporations or entities, if any, having or
claiming an interest or lien upon the mortgaged
premises.)
Defendants.

EXCERPT:

Inasmuch as the standing of the plaintiff has now been drawn into question, it was
incumbent upon the plaintiff to prove such standing before being entitled to any relief (see,
CitiMortgage, Inc. v Rosenthal. 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011]). The standing of
a plaintiff in a mortgage foreclosure action is measured by its ownership, holder status or
possession of the note and mortgage at the time of the commencement of the action (see. Bank of
N. Y. v Silverberg. 86 AD3d 274. 926 NYS2d 532 [2d Dept 20 I I]: U.S. Bank, N.A. v Collymore,
68 AD3d 752. 890 NYS2d 578 [2d Dept 2009]). A mortgage ”is merely security for a debt or other
obligation. and cannot exist independently of the debt or obligation” (Deutsche Bank Natl. Trust
Co. v Spanos. I 02 AD3d 909, 911, 961 NYS2d 200 [2d Dept 2013] [internal quotation marks and
citations omitted]). Holder status is established where the plaintiff is the special indorsee of the
note or takes possession of a mortgage note that contains an endorsement in blank on its face or
attached thereto. as the mortgage follows an incident thereto (see, Mortgage Elec. Registration
~1·s., Inc. v Coakley, 41 AD3d 674. 838 NYS2d 622 [2d Dept 2007]: First Trust Natl. Assn. v
Meisels. 234 AD2cl-+ 14, 651 NYS2d 121 [2d Dept 1996] ). “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 lo transfer the obligation. and the mortgage passes with the debt as an
 inseparable incident” (U.S. Bank, N.A. v Collymore. 68 AD3d 752. sup at 754 f internal
quotation marks and citations omitted]).

In the instant case. the plaintiff failed to establish. prima facia. that it had standing as its
evidence did not adequately demonstrate that the note was physically delivered to it prior to the
commencement of the action (sec. Deutsche Bank Natl. Trust Co. v Rivas. 95 AD3d 1061. 945
NYS2d ‘”128 l2d Dept 2012/: HSBC Bank USA v Hernandez. 92 AD3cl 8-t3. 939 N\’S:2d 120 [::’.cl
fkpt 2tl 1.2 i l. In support or the motion. the plaintiff submitted. inter alia. the affidavit of Bradley
Richard a Vice President of Loan Documentation from the plaintiff. In his affidavit. Bradley
alleges among other things. that the promissory note was endorsed in blank and is in the plaintiff
possession. The plaintiff’s representative however did not provide any factual details concerning
when the plaintiff received physical possession of the note. and. thus. the plaintiff failed to
establish that had it physical possession of the note prior to commencing this action (sec. Deutsche
Bank .Vat/. Trust Co. v Barnett. 88 ,\f)Jd 63(1. 931 \i\S2d 630 r2d Dept 21Jl 1 j). I furthermore. in
this case. the note contains two endorsements. the second of which was purportedly made by the
plaintiff. Additionally. the plaintiffs officer neither addressed the relevance of the agreement
between Washington Mutual Bank and Wells Fargo Funding. nor the relationship, if any. between
these entities and the plaintiff. Moreover. if MERS. as nominee of Professional was not the owner
of the note. as it appears. it would have lacked the authority to assign the note to plaintiff: and
absent an effective transfer of the note. the assignment of the mortgage to plaintiff would be a
nullity (si:c. Bank \i YS2cl 92 I 2cl Dept 1988] ). Thus. the issue of standing cannot be determined as a matter of law on this record. In view of the plaintiffs incomplete and conflicting evidentiary submissions, an issue of fact remains as to whether it had standing to commence this action. The Court now turns to the
ten affirmative defenses set forth in the defendant mortgagor’s original answer.

[…]

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