Posted on 23 May 2013.
Why is MERS listed as a defendant if it was assigning for the Plaintiff?? Exactly…conflicts here too!
SUPREME COURT – STATE OF NEW YORK
IAS PART 48 – SUFFOLK COUNTY
PRESENT: Hon. HECTOR D. LASALLE
Justice of the Supreme Court
The Bank of New York fka The Bank of New York
as successor to JPMorgan Chase Bank, N.A. as
Trustee for Holders of SAM1 I1 Trust 2006-AR7,
Jason Mungro, Mortgage Electronic Registration
Systems, Inc., acting solely as a nominee for
Countrywide Bank, N.A., its successors and
assigns, and “JOHN DOE #1” through “JOHN
DOE #10”, the last ten names being fictitious and
unknown to the plaintiff, the person or parties,
if any, having or claiming an interest in or lien
upon the mortgaged premises described in the
In opposition to the motion, the defendant submits, inter alia, an affidavit by the defendant mortgagor and an affirmation by counsel. In his affidavit, the defendant mortgagor concedes that he executed the mortgage in favor of Countrywide and delivered it to MERS as nominee for Countrywide. He also concedes that a foreclosure settlement conference pursuant to CPLR 3408 has been conducted, but that his loan was not modified and this action was not settled. In his affirmation, counsel requests that the motion be denied, arguing that there may be an issue as to standing since MERS as nominee for Countrywide lacked the authority to assign the note to the plaintiff. Counsel also asserts that the assignment of the mortgage to the plaintiff was not recorded at the time this action was commenced.
Parenthetically, in what appears to be a scrivener’s error, and in contradiction to the defendant mortgagor’s concession, counsel asserts that a foreclosure settlement conference pursuant to CPLR 3408 has never been held.
. . .
Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order
to be entitled to relief (see, CitiMortgage, Inc. v Rosentlial, 88 AD3d 759, 931 NYS2d 638 [2d Dept
20 1 I]). A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the
underling note at the time the action is commenced (see, Bank of N. Y. v Silverberg, 86 AD3d 274,926
NJ’S2d 532 [3d Dept 201 11; US. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept
20001). “‘4s a general matter, once a promissory note is tendered to and accepted by an assignee, the
mortgage passes as ai1 incident to the note” (Bank of N. Y. v Silverberg, 86 AD3d 274, supra at 280; see,
Mortgage Elec. Registration Sys., Inc. v Conkley, 41 AD3d 674,838 NYS2d 622 [2d Dept 20071). “By
contrast, a transfer of a mortgage without an assignment of the underlying note or bond is a nullity, and
no interest is acquired by it” (Bank of N. Y. v Silverberg, 86 AD3d 274, supra at 280; see, LaSalle Bank
Natl. Assn. v, Ahearn, 59 AD3d 91 1, 875 NYS2d 595 [3d 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” (US. Bank, N.A. v Collymore, 68 AD3d 752, supra at 754).
In the instant case the plaintiff failed to establish, prima facie, that it had standing as its evidence did not demonstrate that the note was physically delivered to it prior to the commencement of the action (see, Deutsche Bank Nntl. Trust Co. v Rivas, 95 AD3d 1061, 945 NYS2d 328 [2d Dept 20121: HSBC Brink USA v Hernandez, 92 AD3d 843,939 NYS2d 120 [2d Dept 20121). In his affidavits, the plaintiffs servicing agent did not give any factual details of a physical delivery of the note and thus, failed to...
‘The plaintiff. therefore, is awarded partial summary judgment against the defendant mortgagor striking all affirmative defenses, except the first affirmative defense to the extent that it asserts standing as an affirmative defense, and dismissing all of the counterclaims...
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