Decided on June 20, 2012

20236/2011

For the Plaintiff: McCabe Weisberg & Conway, P.C., by Richard P. O’Brien, Esq., 145 Huguenot Street, New Rochelle, New York 10801

For Defendant Mohammad Haque: Lawrence Spivak, Esq., 169-26 Hillside Ave., Jamaica, New York 11432

Charles J. Markey, J.

Notice of Motion – Affidavits – Exhibits ………………………………………………………..1-3

Answering Affidavits – Exhibits …………………………………………………………………..4-5

Reply Affidavits …………………………………………………………………………………………6-7

Plaintiff Deutsche Bank National Trust Company, as trustee of the Home Equity Mortgage Loan Asset-Backed Trust Series INABS 2005-B, Home Equity Mortgage Loan Asset-Backed Certificates, Series INABS 2005-B, under the Pooling and Servicing Agreement dated June 1, 2005 (“Deutsche Bank”) seeks to foreclose on a mortgage on the subject real property known as 90-05 215th Street, Queens Village, in Queens County, New York given by defendant Haque. The mortgage was given to secure repayment of a promissory note, evidencing a loan in the original principal amount of $279,200.00, plus interest. Plaintiff Deutsche Bank alleges in its complaint that it is the holder of the mortgage and underlying note pursuant to an assignment dated August 11, 2011. Plaintiff Deutsche Bank also alleges that defendant Haque defaulted under the terms of the mortgage and note by failing to make the monthly installment payment of interest due on April 1, 2010, and, it elected to accelerate the entire mortgage debt. [*2]

In lieu of serving an answer, defendant Haque moves, pursuant to CPLR 3211(a)(3), to dismiss the complaint asserted against him based upon lack of standing. Defendant Haque asserts that the plaintiff Deutsche Bank did not own the note and mortgage at the time it commenced the foreclosure action, and cannot rely upon the August 11, 2011 assignment to establish standing.

The Appellate Division, Second JudiciaI Department, in U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2009], in pertinent part, stated:

. . . . In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2007]; Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547 [2003]; First Trust Natl. Assn. v Meisels, 234 AD2d 414 [1996]). Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity (see Merritt v Bartholick, 36 NY 44, 45 [1867]; Kluge v Fugazy, 145 AD2d 537, 538 [1988]). 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, and the mortgage passes with the debt as an inseparable incident (see Weaver Hardware Co. v Solomovitz, 235 NY 321 [1923]; Payne v Wilson, 74 NY 348, 354-355 [1878]; LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912 [2009]; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d at 674; Flyer v Sullivan, 284 App Div 697, 699 [1954]).

U.S. Bank, N.A. v Collymore, 68 AD3d at 753-754.

The mortgage names IndyMac Bank, F.S.B. (IndyMac) as the lender and Mortgage Electronic Registration Systems, Inc. (MERS) as the nominee for the lender and the lender’s successors and assigns, and as the mortgagee of record for the purpose of recording the mortgage. The note is executed by defendant Haque in favor of IndyMac and bears an undated blank endorsement, without recourse, by Vincent Dombrowski, as “Vice President” of IndyMac.

To the extent plaintiff Deutsche Bank asserts the August 11, 2011 assignment effectuated the assignment of the note and mortgage, the mortgage does not specifically give MERS the right to assign the underlying note (see, Bank of New York v Silverberg, 86 AD3d 274 [2nd Dept. 2007]).

In addition, to the extent plaintiff Deutsche Bank asserts the note was transferred to “the trust,” pursuant to a “pooling and servicing” agreement between IndyMac ABS, Inc. as depositor, IndyMac BankSM, as seller and “master servicer” and Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2005-B, issuer, such agreement does not establish that IndyMac assigned the note to plaintiff Deutsche Bank. Plaintiff Deutsche Bank does not otherwise allege a basis for a valid assignment of the note (see, U.S. Bank, N.A. v Collymore, 68 AD3d at 753-754, supra). [*3]

Nevertheless, to the extent it is alleged that the note was transferred to plaintiff Deutsche Bank, plaintiff Deutsche Bank would have standing in order to be entitled to relief if Deutsche Bank had physical possession of the note on August 28, 2011, the date of commencement of this action (see, Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2nd Dept. 2011]; cf. U.S. Bank Nat. Assn. v Dellarmo,AD3d, 2012 WL 1109173, 2012 NY Slip Op. 02481, 2012 NY App Div LEXIS 2437 [[2nd Dept. 2012]). Since a foreclosure plaintiff must prove its standing in order to be entitled to relief (see, U.S. Bank, N.A. v Collymore, 68 AD3d at 753, supra; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2nd Dept. 2007]), defendant Haque may assert lack of standing as an affirmative defense in his answer (see, e.g., HSBC Bank USA v Hernandez, 92 AD3d 843 [2nd Dept. 2012]; US Bank N.A. v Madero, 80 AD3d 751 [2nd Dept. 2011]).

The motion is denied, and defendant Haque is directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

June 20, 2012

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