U.S. Bank National Association v. Carnivale , 29 N.Y.S.3d 643 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 521575
________________________________
U.S. BANK NATIONAL ASSOCIATION,
as Trustee for J.P. MORGAN
MORTGAGETRUST 2006-S4,
Respondent,
v MEMORANDUM AND ORDER
FRANK A. CARNIVALE, Also Known
as FRANK A. CARNEVALE,
Appellant.
________________________________
Calendar Date: February 10, 2016
Before: Peters, P.J., Garry, Rose, Devine and Clark, JJ.
__________
Rusk, Waldin, Heppner & Martuscello, LLP, Kingston (Jason
J. Kovacs of counsel), for appellant.
Eckert Seamans Cherin & Mellot, LLC, White Plains (David V.
Mignardi of counsel), for respondent.
__________
Peters, P.J.
Appeal from an order of the Supreme Court (Melkonian, J.),
entered August 6, 2014 in Ulster County, which, among other
things, granted plaintiff's motion for summary judgment.
In September 2006, defendant executed a note in favor of
American Brokers Conduit that was secured by a mortgage on real
property located in Ulster County. When defendant stopped making
payments on the note, plaintiff commenced this action in
September 2012 to foreclose on the mortgage. Following joinder
of issue, plaintiff moved for summary judgment striking
defendant's answer and appointing a referee to compute the amount
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due and owing. Defendant cross-moved for, among other things,
dismissal of the complaint on the ground that plaintiff lacked
standing. Supreme Court granted plaintiff's motion and denied
defendant's cross motion. Defendant appeals, and we affirm.
Plaintiff produced evidence of the mortgage, the unpaid
note and defendant's default, thereby establishing its prima
facie entitlement to summary judgment in this foreclosure action
(see Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 738
[2015]; Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375, 1376
[2015]). Defendant challenged plaintiff's standing to maintain
the action, thus requiring plaintiff to further demonstrate that
it was "both the holder or assignee of the subject mortgage and
the holder or assignee of the underlying note at the time the
action [was] commenced" (Chase Home Fin., LLC v Miciotta, 101
AD3d 1307, 1307 [2012] [internal quotation marks and citations
omitted]; accord Wells Fargo Bank, NA v Ostiguy, 127 AD3d at
1376). "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"
(Onewest Bank, F.S.B. v Mazzone, 130 AD3d 1399, 1400 [2015]
[internal quotation marks and citation omitted]; accord Wells
Fargo Bank, N.A. v Rooney, 132 AD3d 980, 981-982 [2015]; see
Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]).
Plaintiff alleged that it had standing through its physical
possession of the note at the time of the commencement of the
action. "Since the note has only an undated indorsement in blank
from the original lender, it does not evidence plaintiff's
possessory interest" (Deutsche Bank Natl. Trust Co. v Monica, 131
AD3d at 738-739 [citation omitted]; see Bank of Am., N.A. v Kyle,
129 AD3d 1168, 1169 [2015]). To establish actual physical
possession, plaintiff produced the affidavit of an assistant
secretary of JP Morgan Chase Bank, N.A., the custodian and loan
servicing agent for the trust for which plaintiff serves as
trustee. The assistant secretary averred that, upon her review
of the records kept and maintained by JP Morgan Chase and its
subsidiary in the ordinary course of business, JP Morgan Chase
received the original note on October 19, 2006 and maintains
possession of the note at its storage facility in Louisiana.
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Plaintiff also proffered the affidavit of JP Morgan Chase's vice-
president, who confirmed that JP Morgan Chase had possession of
the note when this action was commenced. While "the better
practice" would have been for plaintiff to submit evidence
showing exactly how JP Morgan Chase, as custodian of the trust,
came into possession of the note (Aurora Loan Servs., LLC v
Taylor, 25 NY3d at 362), the foregoing evidence was sufficient to
establish, prima facie, that the note was delivered to
plaintiff's custodian prior to the commencement of this
foreclosure action and remained in its possession at the time the
action was commenced (see id. at 359-362; Everhome Mtge. Co. v
Pettit, 135 AD3d 1054, 1055 [2016]; JPMorgan Chase Bank, N.A. v
Mantle, 134 AD3d 903, 904-905 [2015]; HSBC Bank USA, N.A. v Sage,
112 AD3d 1126, 1127 [2013], lvs dismissed 22 NY3d 1172 [2014], 23
NY3d 1015 [2014]; compare JP Morgan Chase Bank, N.A. v Hill, 133
AD3d 1057, 1058-1059 [2015]).1
In opposition, defendant offered no evidence to contradict
the factual averments by the assistant secretary and vice-
president. Furthermore, defendant lacks standing to challenge
plaintiff's possession of the note based on a purported
noncompliance with certain provisions of the applicable pooling
and servicing agreement (see Bank of Am. N.A. v Patino, 128 AD3d
994, 994-995 [2015], lv dismissed 26 NY3d 975 [2015]; Wells Fargo
Bank, N.A. v Erobobo, 127 AD3d 1176, 1178 [2015], lv dismissed 25
NY3d 1221 [2015]; Bank of N.Y. Mellon v Gales, 116 AD3d 723, 725
[2014]; see also Rajamin v Deutsche Bank Natl. Trust Co., 757 F3d
79, 87 [2d Cir 2014]). As defendant's submissions failed to
raise any triable issues of fact with respect to plaintiff's
standing, Supreme Court properly granted summary judgment in
1
This case does not present the same concerns as those
raised in JP Morgan Chase Bank, N.A. v Hill (133 AD3d 1057
[2015]). There, unlike here, there was evidence that a prior
foreclosure action had been commenced by a different entity
during the period of time in which the plaintiff bank claimed to
have possessed the original note, and, further, the defendants
therein had moved for an order directing the plaintiff to produce
the original "wet-ink" note, and made the same demand in their
answer (id. at 1058-1059).
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plaintiff's favor.
Garry, Rose, Devine and Clark, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court