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WELLS FARGO BANK, N.A. v. GALLAGHER, 137 A.D.3d 898 (2016)

Court: Supreme Court of New York Number: innyco20160309917 Visitors: 9
Filed: Mar. 09, 2016
Latest Update: Mar. 09, 2016
Summary: Ordered that the order is affirmed insofar as appealed from, with costs. To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce "the mortgage, the unpaid note, and evidence of default" ( Emigrant Mtge. Co., Inc. v Beckerman, 105 A.D.3d 895 , 895 [2013] [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Charlaff, 134 A.D.3d 1099 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 A.D.3d 1206 , 1206-1207 [2015]). Additionally, where, as here,
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Ordered that the order is affirmed insofar as appealed from, with costs.

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce "the mortgage, the unpaid note, and evidence of default" (Emigrant Mtge. Co., Inc. v Beckerman, 105 A.D.3d 895, 895 [2013] [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Charlaff, 134 A.D.3d 1099 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 A.D.3d 1206, 1206-1207 [2015]). Additionally, where, as here, the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing (see Deutsche Bank Natl. Trust Co. v Idarecis, 133 A.D.3d 702 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d at 1207; Wachovia Mtge. Corp. v Lopa, 129 A.D.3d 830, 830-831 [2015]). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 360-362 [2015]; Deutsche Bank Natl. Trust Co. v Idarecis, 133 A.D.3d 702 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d at 1207). A plaintiff may demonstrate that it is the holder or assignee of the underlying note "by showing either a written assignment of the underlying note or the physical delivery of the note" (U.S. Bank N.A. v Guy, 125 A.D.3d 845, 846-847 [2015]; see Deutsche Bank Natl. Trust Co. v Idarecis, 133 A.D.3d 702 [2015]; Deutsche Bank Trust Co. Ams. v Vitellas, 131 A.D.3d 52, 59 [2015]).

Here, contrary to the appellants' contention, the Supreme Court did not err in concluding that the plaintiff, Wells Fargo Bank, NA (hereinafter Wells Fargo), established, prima facie, that it had standing to commence this foreclosure action. Among other things, Wells Fargo submitted the affidavit of a vice president of loan documentation, Shae E. Herman, which sufficiently demonstrated that, at the time the action was commenced, Wells Fargo had physical possession of the note, which included an endorsement to Wells Fargo (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355 [2015]; LNV Corp. v Francois, 134 A.D.3d 1071 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d at 1207; Wells Fargo Bank, N.A. v Parker, 125 A.D.3d 848, 850 [2015]; Wells Fargo Bank, N.A. v Arias, 121 A.D.3d 973 [2014]; cf. Wells Fargo Bank, NA v Burke, 125 A.D.3d 765, 766-767 [2015]). Moreover, while the mortgage passes with the note as an incident thereto and its possession or assignment is not dispositive of Wells Fargo's standing (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362), Wells Fargo also presented evidence that the mortgage was assigned to it prior to the commencement of the action (see Loancare v Firshing, 130 A.D.3d 787, 789 [2015]; HSBC Bank USA, N.A. v Baptiste, 128 A.D.3d 773, 774 [2015]). Additionally, Wells Fargo established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the appellants' default in repayment of the loan (see LNV Corp. v Francois, 134 A.D.3d 1071 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d at 1207). In opposition, the appellants failed to raise a triable issue of fact. Their contention that Herman's affidavit constituted inadmissible hearsay is without merit.

Accordingly, the Supreme Court properly granted that branch of Wells Fargo's motion which was for summary judgment on the complaint insofar as asserted against the appellants.

Source:  Leagle

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