SUPREME COURT – STATE OF NEW YORK
I.A.S. PART 37 – SUFFOLK COUNTY

WELLS FARGO BANK, N.A. as Trustee for
OPTION ONE MORTGAGE LOAN TRUST
2005-2 Asset Backed Certificates, Series 2005-2,
Plaintiff,

– against –

VINCE J. MONE,
Defendant

ORDERED that this motion (seq. #001) by defendant to compel, this motion (seq. #002)
by plaintiff for summary judgment, and this motion (seq. #003) by defendant to dismiss are
consolidated for the purposes of this determination; and it is further

ORDERED that this motion (seq. #001) by defendant for an Order, pursuant to CPLR
3 l 24 and 3126, compelling plaintiff to comply with defendant’s combined demands is denied;
and it is further
[* 1]

ORDERED that this motion (seq. #002) by plaintiff for an Order, pursuant to CPLR
J 212. granting summary judgment in its favor and for an award of attorney’s fees is denied; and
it is further

ORDERED that this motion (seq. #003) by defendant to dismiss, pursuant to CPLR 3211
(a) ( 1) and (a) (7), is denied.

This is a declaratory judgment action pursuant to RPAPL article 15 for the imposition of
an equitable first priority lien in favor of plaintiff in the loan amount of $600,000.00 from the
date of closing, February 9, 2005, upon defendant’s premises located at 922 Sound Shore Road,
Jamesport. New York. Plaintiff, Wells Fargo, N.A. as Trustee for Option One Mortgage Loan
Trust 2005-2 Asset Backed Certificates, Series 2005-2, commenced this action on March 29,
2012.

Plaintiff alleges by verified complaint that on February 9, 2005, defendant having
accepted the terms of the loan agreement, executed an original mortgage and its attached interestonly
rider in plaintiff’s favor against the subject property as security and in return for the
aforementioned loan. In addition, plaintiff alleges that its settlement agent attempted to record
said documents in the Suffolk County Clerk’s Office but that they were: (i) rejected due to
incomplete or improper signatures; (ii) lost in transit; or (iii) misplaced by plaintifrs settlement
agent or an employee of the Suffolk County Clerk’s Office. Plaintiff insists that defendant must
sign duplicates of said documents inasmuch as he agreed to be bound by the terms and conditions
of the loan agreement and asserts that defendant has refused or failed to re-execute or complete
duplicate original mortgage documents. By its complaint, plaintiff seeks a declaration that it has
an equitable first priority lien in favor of plaintiff in the loan amount of $600,000.00 from the
date of closing. February 9, 2005, upon defendant’s premises; the imposition of a constructive
and/or resulting trust upon said premises for said lien; a declaration that a copy of the final order
entered herein be recorded among the land records of Suffolk County together with true copies of
the original mortgage and its attached original rider and that said order be indexed in the manner
appropriate to the original documents and in the names of the parties referenced therein. Plaintiff
also alleges that defendant breached his agreement under the loan agreement to execute and
provide those documents necessary to grant plaintiff and its assignees a first priority security
interest in the subject property and seeks specific performance of defendant’s agreement under
the loan agreement by executing documents necessary for the recording of the original mortgage
and its rider. Defendant served his answer containing affirmative defenses, including standing,
and counterclaims.

Plaintiff seeks summary judgment on its complaint and attorney’s fees. The Court notes that the copies or the original note and mortgage indicate the lender to be “The New York Mortgage Co .. LLC. A New York Corporation” and an assignment dated February 9. 2005 indicates that said note and mortgage \Vere assigned to “Option One Mortgage Corporation a California Corp.” In addition. the note contains an allonge paying it to the order of ”Option One
Mortgage Corporation a California Corp.” by authorized signer Anna Frange. VP of Closing.

Funding and Shipping of “The New York Mortgage Co .. LLC. A New York Corporation.’·
De!Cndant requests dismissal on the grounds that plaintiff failed to demonstrate standing
as assignee of the mortgage or holder of the note and mortgage at the commencement of this
action. and in any event, a trustee plaintiff cannot be the rightful owner of the mortgage and
plaintiff has not provided a power-of-attorney for each assignment in the chain of title of the
mortgage. Defendant’s submissions include a copy of an assignment of mortgage dated July 27.
20 I l. indicating that “The New York Mortgage Co., LLC” assigned the subject mortgage to
··sand Canyon Corporation FKA Option One Mortgage Corporation.”

A defendant waives the defense of lack of standing unless it is raised in either the answer
or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [ e]; Citibank, N.A. v
Swiatkowski. 98 AD3d 555, 949 NYS2d 635 [2d Dept 2012]; Wells Fargo Bank Minn., N.A. v
Mastropaolo. 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]). 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 Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d 680, 954 NYS2d
551 [2d Dept 2011 ]; US Bank, NA v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009];
Wells Fargo Bank Minn., NA v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]).
”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 2012]; US Bank, NA v Collymore, 68 AD3d at 753;
Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]).
··Either a written assignment of the underlying note or the physical delivery of the note prior to
the commencement of the … action is sufficient to transfer the obligation” (HSBC Bank USA v
Hernandez. 92 AD3d 843 ). However, “a transfer or assignment of only the mortgage without
the debt is a nullity and no interest is acquired by it,” since a mortgage is merely security for a
debt and cannot exist independently of it (U.S. Bank N.A. v Dellarmo, 94 AD3d 746, 748, 942
N YS2d 122 [2d Dept 2012]; see Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636, 931
NYS2d 630 [2d Dept 2011]; see also Homecomings Fin., LLC v Guidi, 108 AD3d 506, 969
NYS2d 470 [2d Dept 2013]).

Here the issue of standing cannot be determined as a matter of law on this record (see
Deutsche Bank Natl. Trust Co. v Rivas, 95 AD3d 106 L 1062, 945 NYS2d 328 [2d Dept 2012)).
The motion for summary judgment is supported only by copies of the mortgage loan documents
and the 2005 assignment, powers-of-attorney, and the affidavit of Kyle Lucas, a Senior Loan
Analyst by Ocwen Corporation, whose indirect subsidiary is Ocwen Loan Servicing LLC
( .. Ocwen ‘”). Ms. Lucas states that Ocwen services defendant’s loan as authorized attorney-in-fact
fur plaintiff and attaches the limited power-of-attorney. Plaintiff does not explain either in its
complaint or anywhere else in the submitted motion papers its relationship to either the original
lender or the assignees. Specifically, plaintiff did not submit an affidavit from someone with
personal knowledge providing factual details of a physical delivery of the note to plaintiff or
assignment of the note and mortgage to plaintiff prior to the commencement of this action (see
Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d at 682-683). Thus, plaintiff has failed to
demonstrate that it has standing to commence this action. In addition, defendant’s motion to
dismiss must be denied as questions of fact exist as to, among other things, whether the note was
physically delivered to plaintiff or the note and mortgage were assigned to plaintiff prior to the
commencement of the action (see id., l 00 AD3d at 683; Deutsche Bank Natl. Trust Co. v Rivas,
95 AD3d at l 062).

Finally, the request by defendant to compel plaintiff to provide a response to those
portions of his combined demands which were objected to by plaintiff in its responses to
combined demands is denied inasmuch as the affirmation of good faith submitted by defendant’s
counsel did not satisfy 22 NYCRR § 202.7, as it did not refer to any “communications between
the parties evincing a diligent effort to resolve the dispute, or indicating good cause why no such
communications occurred” other than a letter dated March 4, 2013 to plaintiff’s counsel
requesting outstanding documents and more information concerning objections within fifteen
days and notifying that thereafter defendant counsel would “pursue [his] option through the
court.” (Matter of Greenfield v Board of Assessment Review for Town of Babylon, 106 AD3d
908, 908. 965 NYS2d 555 [2d Dept 2013]; see also Murphy v County of Suffolk, 115 AD3d
820 .. 982 NYS2d 380 [2d Dept 2014]).
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