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.
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