Wells Fargo Bank, NA v. Fortmeyer , 154 A.D.3d 998 ( 2017 )

Wells Fargo Bank, NA v Fortmeyer (2017 NY Slip Op 07482)

Wells Fargo Bank, NA v Fortmeyer

2017 NY Slip Op 07482

Decided on October 25, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
SANDRA L. SGROI, JJ.

2015-08261
2015-08263
(Index No. 5446/13)

[*1]Wells Fargo Bank, NA, as trustee for WaMu mortgage pass-through certificates series 2004-PR2 trust, respondent,

v

Kevin Fortmeyer, et al., appellants, et al., defendants.

Joseph Falbo, Jr., Mineola, NY, for appellants.

Parker Ibrahim & Berg LLC, New York, NY (Scott W. Parker and Mitchell S. Kurtz of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Kevin Fortmeyer and Michelle Fortmeyer appeal (1) from a decision of the Supreme Court, Nassau County (Adams, J.), dated May 14, 2015, and (2), as limited by their brief, from so much of an order of the same court entered June 2, 2015, as, upon the decision, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them, to strike their answer, and for an order of reference.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In 2004, the defendants Kevin Fortmeyer and Michelle Fortmeyer (hereinafter together the defendants) executed a note, and a mortgage on real property, in favor of Washington Mutual Bank, FA (hereinafter WaMu). In 2008, after WaMu had entered receivership by the Federal Deposit Insurance Corporation (hereinafter the FDIC), JP Morgan Chase Bank, N.A. (hereinafter JP Morgan), and the FDIC entered into a purchase and assumption agreement, pursuant to which JP Morgan acquired all of WaMu's loans and loan commitments (see JP Morgan Chase Bank, N.A. v Schott, 130 AD3d 875; JP Morgan Chase Bank, N.A. v Russo, 121 AD3d 1048; JP Morgan Chase Bank N.A. v Miodownik, 91 AD3d 546, 547). JP Morgan thereafter assigned the instant note and mortgage to the plaintiff, by written assignment dated June 30, 2009.

On May 3, 2013, the plaintiff commenced this action to foreclose the mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the [*2]defendants, to strike the defendants' answer, and for an order of reference. The Supreme Court granted those branches of the motion, and the defendants appeal.

To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Wells Fargo Bank, N.A. v Thomas, 150 AD3d 1312; Hudson City Sav. Bank v Genuth, 148 AD3d 687). Moreover, where, as here, a plaintiff's standing to commence a foreclosure action has been placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Wells Fargo Bank, N.A. v Thomas, 150 AD3d 1312; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it was the holder or assignee of the underlying note at the time the action was commenced (see Hudson City Sav. Bank v Genuth, 148 AD3d 687; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725).

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law through production of the mortgage, the note, and evidence of default. Additionally, the plaintiff established, prima facie, that it had standing as the assignee of the note at the time the action was commenced. In opposition, the defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, and for an order of reference.

MASTRO, J.P., HALL, AUSTIN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court