Chase Home Fin., LLC v Spiegel

Annotate this Case

Download PDF

Chase Home Fin., LLC v Spiegel 2017 NY Slip Op 31049(U) May 16, 2017 Supreme Court, Suffolk County Docket Number: 954/11 Judge: Thomas F. Whelan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] MEMO DECISION & ORDER copy INDEX No. _.9:;_::,5'"""4/...::..1-"--l_ _ SUPREME COURT- STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE: 4/13/17 SUBMIT DATE: 515117 Mot. Seq. # 002 - Mot D Pre-Trial Conference: 619117 CDISPY_ N X ---------------------------------------------------------------X CHASE HOME FINANCE, LLC, Plaintiff, ROSICKI, ROSICKI & ASSOC., PC Attys. For Plaintiff 26 Harvester Ave. Batavia, NY 14020 -againstSTEPHANIE SPIEGEL f/k/a STEPHANIE KANTROWITZ, STRATHMORE EAST HOMEOWNER'S ASSOCIATION, "JOHN DOES" and "JANE DOES" said names being fictitious, pru1ies intended being possible tenru1ts or : occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien against the premises, MICHAEL G. McAULIFFE, ESQ. Atty. For Defendru1t Spiegel 68 Sol Service Rd. - Ste. 100 Melville, NY 11747 Defendants. ---------------------------------------------------------------X Upon the following papers numbered 1 to _7_ read on this motion for summary judgment, among other relief _ _ _ _ _ _ __ _ _ _ _ _ ; Notice of Motion/Order to Show Cause and supporting papers J - 3 Notice of Cross Motion and supporting papers _ _ ; Answering papers 4-5 ; Reply papers _6"--7.__ Other ; (a11d after heating eotmsel in s1:1pport and opposed to ti1e motion) it is, ORDERED that this motion (#002) by the plaintiff for an order awarding it summary judgment against the answering defendant and default judgments against the other defendants served with process, a substitution of the named plaintiff by a successor-in-interest together with the deletion of the unknown defendants and a caption amendment to reflect these changes and the appointment of a referee to compute is considered under CPLR 3212, 3215, I 024, 1003 and RP APL [* 2] Chase Home Finance v Spiegel Index No. 954/ 1 I Page 2 § I 321 and is granted only to the limited extent that all affirmative defenses asserted in the answer of defendant Spiegel, except for the Second affirmative defense challenging the plaintiff's stand ing, arc dismissed pursuant to CPLR 32 I 2(b); and it is further ORDERED that a pre-trial conference shall be held on June 9, 2017, at 9:30 a.m. in Part 33, at the courthouse located at 1 Court Street - Annex, Riverhead, New York. The plaintiff commenced this action in February of 2011 to foreclose the lien of September 22, 2008 mortgage given by defendant Spiegel to Capital One Home Loans, LLC to secure a note likewise given on that date in the principal amount of$ I 96,000.00. According to the complaint, the loan went into default in September of2010 and it remained uncured prior to filing. In response to the plaintiff's service of the summons, complaint and other initiatory papers, only defendant Spiegel appeared herein by answer. Therein, defendant Spiegel asserted seven affirmative defenses including, legal insufficiency, lack of standing, improper acceleration of sums due m1der the note, failure to join necessary parties, culpable conduct and the failure to mitigate damages. By the instant motion (fl.002), the plaintiff seeks an awarcll of summary judgment dismissing the affirmative defenses asserted in the answer served by defendant Spiegel and summary judgment on its complaint against said defendant. The plaintiff also seeks an order substituting a successor-inintercst of the named plaintiff for said plaintiff and the deletion of the unknown defendants with a caption amendment to reflect these changes. Also demanded is an adjudication of the defaults in answering of the remaining defendants served with process and the appointment of a referee to compute amounts due under the subject mortgage. The motion is opposed by defendant Spiegel who raises only her pleaded standing defense and advances challenges to the natmc of the plaintiffs proof as grounds for denial of the plaintiff's motion. For the reasons s tated, the motion is denied except to the limited extent set forth herein. 1t is well settled that a foreclosing plaintiffestablishes its prima facie entitlement tojudgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default (see HSBC Mtge. Servs., Jue. v Royal, 142 AD3d 952, 37 NYS3d 321 f2d Dept 20161: Well~· Fargo Bank, N.A. v Erobobo, 127 AD3d 1176, 9 NYS2d 3 l 2 l2d Dept 2015]; Wells Fargo Bank, N.A. v DeSouza, 126 AD3d 965, 3 NYS2d 619 l2d Dept 2015); One West Bank, FSB v .DiPilato, 124 AD3d 735 , 998 NYS2c.1 668 [2d Dept 2015]; Wells Fargo Bank, N.A. v Ali, 122 AD3d 726, 995 NYS2d 735 [2d Dept 20141). Where the plaintiiTs standing has been placed in issue by the defendant's answer, the plaintiff also must establish its stand ing as part of its prima facic showing (see A urora Loan Servs., LLC v Taylor, 25 NY3d 355. 12 NYS3d 612 [20151 ; U.S. Bank Natl. Ass'11 v Cruz, 147 AD3d 1103 , 47 IYS3d 459 [2d Dept 201 T]; HSBC Bank USA, N.A . v Baptiste, [* 3] Chase Horne Finance v Spiegel Index No. 954/11 Page 3 128 AD3d 77, 10 NYS3d 255 [2<l Dept 2015]). Moreover, where the answer served contains affirmative defenses and/or counterclaims that affect the plaintiff's right to recovery, the moving plaintiff seeking summary judgment should establish that none of such counterclaims nor any of the the anirrnative defenses asserted in the answer have merit (see Bank of New York Mellon v Vytalingam , 144 AD3d 1070, 42 NYS3d 274 (2d Dept 2016]; Prompt Mtge. Providers of North A merica, LLC v Singh , 132 J\.D3d 833, 18 NYS3d 668 [2d Dept 2015]; Citimortgage, Inc. v Cit ow Ming Tung, 126 AD3d 841 , 7 NYS3d 147 (2d Dept 20151; Jessabell Realty Corp. v Gonzales, 117 AD3d 908, 909, 985 NYS2d 897 pd Dept 2014]). Here, the moving papers established, prirna facie, that all of the affirmative defenses asserted in the answer served by defendant Spiegel arc without merit, except the asserted standing defense. It is now clear that the standing of a foreclosing plaintiff is measured at the time of the commencement of the action (see Wells Fargo Bank Minn., N.A. v Mastropaolo , 42 /\D3d 239, 242, 837 NYS2d 247 [2d Dept 2007]). It is equally clear that there are several ways in which a foreclosing plaintiff may establish its standing to prosecute its claim for foreclosure and sale and any one will suffice so as to render the others irrelevant and immaterial to the establishment of standing. Relevant to this action are four of the several ways in which a foreclosing plaintiff may establish its standing. The standing of a mortgage foreclosing plaintiff may be derived from that it was the assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 , suprn; Wells Fargo Bank, N.A. v Archibalcl, _ ADJ D_ , 2017 WL 1902211 [20 Dept 2017]; Deutsche Bank Natl. Trust Co. v Romano, 147 AD3d 1021 , 48 NYS3d 237 [2d Dept 2017); U.S. Bank Natl. Ass'n. vAkande, 136 AD3d 887, 26 NYS3d 164 l2d Dept 20161 ; Emigrant Bank v Larizza, 129 AD3d 904, 13 NYS3d 129 r2d Dept 2015 J; Peak Fin. Partners, Inc., v Brook, 11 9 AD3d 539, 987 NYS2d 916 [2d Dept 2014); Chase Home Fi11., LLC v Miciotta, 101 J\.D3d 1307, 956 NYS2d 27 l [3d Dept 20121). Nevertheless, a written assignment of the note that is executed by a nominee of the original lender will not effect a valid transfer of said note unless there is proof that said nominee was authorized to assign the note or was either the assignee or holder of such note at the ti ml! the written assignment was executed (see Filan v Dellaria, 144 AD3d 967, 43 NYS3d 353 [2d Dept20I61 ; Citibank, N.A. vHerman, 125 AD3d 587, 588 589, 3 NYS3d 379 I2d 2015]; Deutsche Bank Natl. Trust Co. v Haller, I 00 AD3d 680, 683, 954 NYS2d 551 I2<l Dept 20121 ; see also JP Morgan Chase Bank, Natl. Ass'n v Venture , 148 AD3d 1269, 48 NYS3d 824 I3d Dept 2017 J). Ilerc, there is no evidence that the January 26, 2011 assignment of the note and .MERS J, as nominee of the original lender, mortgage by Mortgage Electronic Registration Systems [ in favor of the named pl aintiff effccti vely translcrred the note, as there is no evidence of the authority [* 4] Chase 1lome Finance v Spiegel Index No. 954/ 1 l Page 4 of MERS to assign the note on behalf of the original lender or that MERS was in possession of said note as its assignee, the holder thereof. A foreclosing plaintiff may also establish its standing by demonstrating that it is the holder of the mortgage note within the contemplation of the Uniform Commercial Code at the time of the commencement of the action. I Iolder status is established where the plaintiff possesses a note that> on its face or by allonge, contains an endorsement in blank or bears a special endorsement payable to the order of the plaintiff (see UCC 1- 201; 3- 202; 3-204; Hartford Acc. & Jndem. Co. v American Express Co. , 74 NY2d 153 , 159 [1989]). Notably, the holder of an instrument, whether or not it is the owner, may enforce payment in his own name (see UCC 3- 301; Well Fargo Bank, N.A. v Ostiguy, 127 AD3d 1375, 8 NYS3d 669 (3d Dept 2015]). /\. "holder" is " the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession" (UCC 1- 201 [b][21 J;see U.S. Bank Nat. Ass 111 v Cruz, 147 AD3d 1103, supra]; US Bank, N.A. v Zwisler, 46AD3d 213, 2017 WL 422317 [2d Dept 20171; Pe11nymac Corp. v Chavez, 144 AD3d 1006, 42 NYS3d 239 l2d Dept 20 16]). " 'Bearer' means ... a person in possession of a negotiable instrument" (UCC 1-201 l b][5]), and where the note is endorsed in blank, it may be negotiated by delivery alone (see lJCC 3-202[ 1], 3-204r2D. "An endorsement in blank specifies no particular endorsce and may consist of a mere signature" and "[aJn instrument payable to order and endorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially endorsed (UCC 3- 204(2])" (JPMorgan Clzase Bank, Natl. Assn. v Weinberger, 142 AD3d 643, 37 NYS3d 286 f2d Dept 2016]). A special endorsement, which may nppear on the face of the note or by allonge attached thereto, is considered a written assignment of the note (see Deutsche Bank Trust Co. Americas v Garrison, 46 A03d 185, 2017 WL 424740 [2d Dept 2017J). Under this statutory framework, it is clear that to establish its standing as the holder of a duly endorsed note in blank or specially endorsed in its favor, a plaintiff is only required to demonstrate that it had physical possession ofthe note prior to commencement of the action (see Deutsche Bank Natl. Trust Co. v Logan, 146 /\D3d 861 , 45 NYS3d 189 [2d Dept 2016]; JPMorgan Chase Bank., Natl. Asrn. v Weinberger, 142 AD3d 643, 645, supra). Where the note is endorsed in blank. "it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date because such a note is payable to the bearer thereof. /\. plaintiff in possession of a blank endorsed note is thus without obligation to establish how it came into possession of the instrument in order to enforce it" (see UCC 3-204[2 J; Deutsche Bank N atl. Trust Co. v Logan , 146 /\.D3d 86, supra; Pe1111ymac Corp. v Chavez, 144 /\.D3d 1006, supra. quotinx [* 5] Chase I lome finance v Spiegel Index No. 95411 I Page 5 JPMorga11 Chase Bank, Natl. Assn. v Wei11berger. 142 AD3<l 643, 645, supra). In addition, because "a signature on a negotiable instrument ' is presumed to be genuine or authorized"' (see UCC 3- 30711 JI b I), the plaintiff is not required to submit proof that the person who endorsed the subject note, in blank or especially in favor of the plaintiff, was authorized to do so (see CitiMortgage, Inc. v McKi1111ey, 144 AD3d 1073, 42 NYS3<l 302 l 2d Dept 2016)). Alternatively, due proof of the physical del ivery of the note to the plaintiff or its custodial agent prior to commencement of a foreclosure action is also sufficient to trnnsfor the mo11gage obligation and create standing to fo reclose (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, supra; US Bank Natl. Ass 'n v Elzre11/ ld, 144 AD3d 893, 41 NYS3d 269 t2d Dept 2016 I, supra; e JPMorgan Chase Bank, Natl. Ass'11 v Weinberger, 142 AD3d 643, supra; Citimortgage, Inc. v Klein , 140 AD3d 913, 33 NYS3d 432 [2d Dept 2016J; U.S. Bank vAskew, 138 AD3d 402, 27 NYS3d 856 1 Dept2016]; U.S. Bank N atl. Ass'n v Gotfwin , 137 AD3d 1260, 28 NYS3d 450 l2d Dept 20161; Wells Fargo Bank, N.A. v Joseplt , 137 AD3d 896, 26 NYS3d L2d Dept 20161; Emigra11t Ba11k v Larizza. 129 AD3d 904, supra; Bank of N. Y. Me/1011 Trust Co. NA v Sac/tar, 95 AD3d 695. 943 NYS2<l 893 [I st Dept 2012]). Indeed , the establishment of the plaintiffs actual possession of the mortgage note or its constructive possession through a custodial agent on a <late prior to the comn1encemcnt of the action is so conclusive that it renders, unavailing, all claims of defects in allonges (see U.S. B{tnk v Askew, l 38 AD3d 402, supra). It further renders unavailing. all claims of defects in the chain of mortgage assignments (see A urora Loan Servs., LLC v Taylor, 25 NY3d 355, supra ; CitiMortgage, Inc. v McKinney 144 AD3d I 073, 42 NYS3d 302 [2d Dept 2016]: JPMorgan Chase Bank, Natl. Ass '11 v Wei11berger, 142 AD3d 643, supra; Deutsche Flagstar Bank, FSJJ v Mendoza, 139 AD3d 898, 32 NYS3d 278 [2d Dept 2016]; US Bank Natl. Trust v Na11gftto11 , 137 AD3d 1199, 28 NYS3d 444 r2ct Dept 20 16J; Deutsche Bank Natl. Trust v Wltalen , 107 AD3d 931, 969 NYS2d 82 r2ct Dept 20 13]). ris Stand ing may also be established by demonstrating that through one or a succession of several mergers, the plaintiff gained actual or constructive possession of the note on the effective date of the merger which was prior to the commencement of the foreclosure act ion (.\·ee Banking I,aw § 602; TD Bank, N.A. v Mandia . 133 AD3d 590, 20 NYS3d 83 l2d Oept 201 SJ; PNC Bank, Natl. Ass'n v Kleill, 125 ADJ<l 953, 5 NYS3d 43912d Dept 2015]; JP Morga11 Chase Bank, Natl. Ass'n v Russo, 121AD3d1048. 996 NYS2d 68 l2d Dept 2014]; JP Morgan Cltase Bank, Natl. Ass'11 v Shapiro. I04 AD3<l 4 l l. 959 NYS2d 918 [I si Dept 20131; Capital One, N.A. v Brooklyn Flatiro11, LLC, 85 AD3d 837, 925 NYS2d 350 [20 l IJ; ladino v Bank ofAmerica , 52 AD3d 571 . 861 NYS2d 683 I2d Dept 2008]: see also Wells Fargo Bank, N.A . v Moore , 599 Fed. Appex 600 p 1h Circ. 2015 '·The s111Tiving entity in a corporate merger acyuires all ofitspredecessors' rights (and obligatiom) as a mailer of!m1 there is no need for document-by-document assignments'·]). 1 ; [* 6] Chase Home Finance v Spiegel Index No. 954/ 11 Page 6 Here, the record contains evidence that the original lender, by an al longe attached to the note. specially endorsed the note in favor of JPMorgan Chase Bank, N .A. who endorsed it in blank. Yct the aflidavit of note possession submitted by the plaintiff that was executed by an employee of JPMorgan Chase Bank, N.A. and is attached to the moving papers as Exhibit B, indicates that JPMorgan Chase Bank, N.A. , is the custodian of the collateral documents for the subject loan. The affiant further avers that the recordsof JPMorgan Chase Bank, along with those of its subsidiary, JPMorgan Chase Custody Services, Inc. , indicate that the custodian, JPMorgan Chase Bank, N.A., took physical possession of the note on October 8, 2008, some three weeks after the loan's origination. Since the note possession affiant fails to identify for whom JPMorgan Chase, N.J\. serves as custodian, none of the factual averments demonstrate that tJ1e plaintiff, Chase Home finance, LLC, who commenced this action in February of201 l , was in possession of the note at the time of such commencement actually, or constructively through a custodian. Moreover, although there is some evidence that the plaintifl: Chase Home Finance LLC, merged into JPMorgan Chase Bank National Association under a Delaware merger agreement effective as of May 1, 20 11 (see Certificate of Merger attached as part of Exhibit C to the moving papers), the occurrence of that merger post-dates the October 8, 2008 delivery of the note to the special endorsee, custodian, Wells Fargo Bank, N .A., as testified to by the plaintiffs "note possession" affiant. Accordingly, said affidavit does not establish that the named plaintiff, Chase IIome Finance, LLC, had possession of the note duly endorsed by the special endorsee, and thereafter endorsed in blank by said entity, on the date of the commencement of this action. The plaintiff thus failed to demonstrate any entitlement to a dismissal of the pleaded standing defense or to the accelerated j udgmcnts against the defendants and other relief demanded on its motion (#002 ). In view ofthe foregoing, the instant motion (#002) for summaryjudgment and the other relief outlined above is b'Tantcd only to the extent that all affirmative defenses asserted in the answer of defendant Spiegel except for the Second afiirmative defense challenging the plaintifrs standing are dismissed pursuant to CPLR 3212(b). DATED: ~_Jj/:;/J_J_

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.