US Bank Natl. Assn. v Ezugwu

US Bank Natl. Assn. v Ezugwu 2015 NY Slip Op 04417 Decided on May 26, 2015 Appellate Division, First 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 May 26, 2015
Mazzarelli, J.P., Acosta, Renwick, Manzanet-Daniels, Feinman, JJ.
15217 382221/10

[*1] US Bank National Association, as Trustee for CASB Mortgage- Backed Pass-Through Certificates, etc., Plaintiff-Appellant,

v

Anthony Ezugwu, Defendant-Respondent, New York City Env. Control Board, et al., Defendants.

Hogan Lovells US LLP, New York (Chava Brandriss of counsel), for appellant.

Petroff Law Firm, P.C., Brooklyn (Serge F. Petroff of counsel), for respondent.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered June 11, 2014, which, to the extent appealed from, denied plaintiff's motion for summary judgment against defendant Anthony Ezugwu, without prejudice to renewal upon proper papers, unanimously affirmed, with costs.

Plaintiff failed to establish prima facie that it received defendant's mortgage and note by "a proper assignment" (see Midfirst Bank v Agho, 121 AD3d 343, 347-348 [2nd Dept 2014]). The Pooling and Servicing Agreement (PSA) provides: "The [nonparty] Depositor hereby sells, transfers, assigns, delivers, sets over and otherwise conveys to the Trustee [plaintiff] in trust for the benefit of the Certificateholders [sic] and the Certificate Insurer, without recourse, the Depositor's right, title and interest in and to [inter alia] the Mortgage Loans listed in the Mortgage Loan Schedule." However, plaintiff submitted neither the referenced loan schedule nor any other evidence to demonstrate that the subject mortgage and note were included in the assignment.

The affidavit by plaintiff's officer, which states that she personally "reviewed the books and records created, maintained and utilized by Wells Fargo in the ordinary course of its business as Master Servicer and Custodian for the Trust," does not avail plaintiff, since the affidavit refers to the PSA only.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 26, 2015

CLERK