U.S. Bank Trust, N.A. v Henderson

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U.S. Bank Trust, N.A. v Henderson 2023 NY Slip Op 33510(U) September 25, 2023 Supreme Court, Kings County Docket Number: Index No. 3701/2010 Judge: Richard J. Montelione Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 3701/2010 [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 99 ------------------------------------------------------------------X U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSFl 1 MASTER PARTICIPATION TRUST, Plaintiff, Decision and Order After Trial -againstHEATHER HENDERSON AIKJA HEATHER Q. HENDERSON; FLEET NATIONAL BANK; BOARD OFMANAGERSOFGRANTSMEWS CONDOMINIUM; "JOHN DOE" AND "JANE DOE" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, 1 Index No. 3701/2010 Defendants. ------------------------------------------------------------------X MONTELIONE, RICHARD J., J. The Court considered the following exhibits: ,- ... ~ Plaintiffs Document Exhibit Date/Recorded IA 2 8/4/2003 8/4/2003 Description Certified Copy of document filed with City of New York, Department of Finance, Promissory note, deemed an original for purposes of trial after defendant's counsel compared the copy to the original, referencing 4 72 Warren Street, Brooklyn, NY 11217, with a principal amount of $120,000.00. Lender is Skyline Mortgage I/L/T U.S. Mortgage Corp, A New Jersey Corporation. Certified Copy of document filed with City of New York, Department of Finance, Mortgage in the 1 of9 [* 1] 1 of 9 ""' I I I I INDEX NO. 3701/2010 [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/10/2023 Plaintiffs Document Exhibit Date/Recorded Description principal amount of $120,000.00, referencing borrower Heather Henderson, 472 Warren Street, Brooklyn, NY 11217, Lender is Skyline Mortgage 1/L/T U.S. Mortgage Corp. 3 UNDATED, Recorded 12/8/2004 Certified Copy of document filed with City of New York, Department of Finance, Assignment of I Mortgage, loan no. 501500119, dated MERS as nominee for Skyline Mortgage I/L/T U.S. Mortgage Corporation to Indymac Bank, F.S.B., referencing 472 Warren Street, Brooklyn, NY 11217 (Document date listed on cover page is 9/12/2003). 4 4/16/2015, recorded 5/18/2015 Certified Copy of document filed with City of New York, Department of Finance, Corporate Assignment of Mortgage, MERS Assignor Skyline Mortgage I/L/T U.S. Mortgage Corporation to Indymack Bank, F.S.B., referencing Heather Henderson, 472 Warren Street, Brooklyn, NY 11217. 5 2-23-2004 Certified Copy of document filed with City of New York, Department of Finance, Assignment of Mortgage, loan number 501500119, dated February i 23, 2004, MERS Assignor Skyline Mortgage I/L/T U.S. Mortgage Corporation to Indymac Bank, F.S.B., referencing 472 Warren Street, Brooklyn, NY 1121 7 (Document date listed on cover page is 7/13/2005). 6 10/1/2013 Recorded on 11/1/2013 Certified Copy of document filed with City of New York, Department of Finance Assignment of Mortgage, loan number (not indicated), MERS One West Bank, F.S.B., Assignor to Ocwen Loan Servicing, LLC, referencing Mortgage recorded on August 4, 2003 re Heather Henderson, property 2 of9 [* 2] 2 of 9 I INDEX NO. 3701/2010 [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/10/2023 Plaintiffs Document Exhibit Date/Recorded Description address 472 Warren Street-Apt.#3, Brooklyn, NY 11215, block 399/Lot 1018. 7 9/15/2009 Letter dated 9/15/2009 from Home Loan Servicing to Heather Henderson demanding payment of $1,644.99 to cure the default on the mortgage with a loan number ######824 7. I 10/20/2009 Letter dated 10/20/2009 from Home Loan Servicing to Heather Henderson demanding payment of $2,578.93 annexing information pertaining to HUDApproved housing counseling agencies located in New York. ' 8 I 9 3/11/2021 recorded on 7/15/2021 Certified Copy of document filed with City of New York, Department of Finance, Power of Attorney dated 3/11/2021 from various trusts through U.S. Bank Trust National Association to Fay Servicing, LLC and various other entities. This matter is an action for the foreclosure of a mortgage on real property, I l condominium, located at 472 Warren Street, Brooklyn, NY 11217, Unit 472-3, block 399, Lot 1018, that was mortgaged by the defendant Heather Henderson to secure a loan which was obtained on August 4, 2003, in the amount of $120,000. 0 ("subject mortgage"). The action was commenced by filing a summons and complaint on February 11, 2010. Issue was joined by filing an answer on March , 3 of9 [* 3] 3 of 9 INDEX NO. 3701/2010 [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/10/2023 2010. The ACRIS records 1 indicate that: A. The original subject mortgage is dated August 4, 2003 and filed with the County Clerk on February 3, 2004, from Heather Henderson, Assignor, to Skyline Mortgage I/L/T U.S. Mortgage Corp., Assignee, Block 399, Lot 1018, Unit 472-3, 472 Warren Street, Brooklyn, NY, CRFN 2004000064143. B. The subject mortgage was thereafter assigned by Assignment dated September 12, 2003 and filed on December 8, 2004, from Skyline Mortgage I/L/T U.S. Mortgage Corp., Assignor, to Indymac Bank, F.S.B., Assignee, CRFN 2004092202387001. C. The subject mortgage was thereafter re-recorded by Assignment dated February 23, 2004 and filed on May 10, 2006, from, Skyline Mortgage I/L/T U.S. Mortgage Corporation, Assignor, to Indymac Bank, F.S.B., Assignee, CRFN 2006013001491001. D. The subject mortgage was thereafter assigned by Assignment dated March 15, 2010 and filed on April 7, 2010, from Federal Deposit Insurance Corporation, As Receiver for Indymac Federal Bank, FSB, successor to Indymac Bank, F.S.B., Assignor, to One West Bank, FSB, 1 The ~arties in~ post-trial stipulation agreed that the court may take Judicial Notice of the Assignments involving the subject premises as found on ACRIS and attached assignment records to the agreement (NYSCEF#4). 4 of9 [* 4] 4 of 9 INDEX [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 No. RECEIVED NYSCEF: 10/10/2023 Assignee, CRFN 2010000116535. E. The subject mortgage was thereafter assigned by Assignment dated October 1, 2013 and filed on November 1, 2013, from OneWest Bank, FSB, Assignor, to Ocwen Loan Servicing, LLC, Assignee, CRFN 2013000453073. ' F. The subject mortgage was thereafter assigned by Assignment dated April 16, 2015 and filed on May 18, 2015, from Skyline Mortgage 1/L/T US Mortgage Corporation, Assignor to Indymac Bank, FSB, CRFN 2015000166321. G. The subject mortgage was thereafter assigned by Assignment dated September 15, 2015 and filed on September 21, 2015, from Ocwen Loan Servicing, LLC, Assignor, to Skyline Mortgage 1/L/T US Mortgage Corp, Assignee, CRFN 2015000335248. H. The subject mortgage was thereafter assigned by Assignment dated March 4, 2019 and filed on March 5, 2019, from Federal National Mortgage Association, Assignor, to US Bank Trust, NA, As Trustee for LSFl 1 Master Participation Trust, Assignee, CRFN 2019000072239. The trial commenced and concluded in this action on February 22, 2022. The court heard testimony from one witness on behalf of the plaintiff, Janet Gioello, who works for Faye Servicing LLC which is currently servicing the 5 of9 [* 5] 3701/2010 5 of 9 [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 INDEX NO. 3701/2010 RECEIVED NYSCEF: 10/10/2023 subject loan for plaintiff and deals with all aspects of loan processing, payments, and loss mitigation. Ms. Gioello holds the title "trial/mediation specialist" who manages a portfolio of loans. She previously worked for Bank of America for 1~ I years, seven years of which was as a litigation paralegal. Ms. Gioello is involved in 1 all aspects of loan processing and loss mitigation. Ms. Gioello testified about the process of "boarding a loan." Ms. Gioella testified there are no records of any payments since August 1, 2009, the date of default. Taxes and insurance have been paid by the lenders. No ledger or other business records were admitted into evidence detailing the amount due each month, accrued interest, taxes, water or other fees. Plaintiffs counsel at the end of the case in chief requested that the court schedule a hearing for the determination of damages. The original note was produced in court and both the defendant's counsel and the court had an opportunity to view it. The parties stipulated to the admission of an exact copy of the note in evidence in lieu of the original. The Answer, paragraphs 4, 9, and 11 specifically raises the following defense: "Plaintiff has either failed or refused to provide proof of legal standing and ownership of this debt." The court by order dated June 9, 2023 and entered on June 13, 2023 substituted the plaintiff for US Bank Trust, NA, as Trustee for LSF 11 Master Participation Trust and allowed the amendment of the caption to reflect the 6 of9 [* 6] 6 of 9 INDEX NO. 3701/2010 [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/10/2023 substituted party. Applicable Law The court must first address the defendant's affirmative defense of lack of standing. See Kondaur Cap. Corp. v. McCary, 115 A.D.3d 649, 649-50, 981 N.Y.S.2d 547, 2014 N.Y. Slip Op. 01438, 2014 WL 840564 (2014), 'Where, as here, a plaintiffs standing to commence a foreclosure action is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (Citimortgage, Inc. v. Stosel, 89 A.D.3d 887,888,934 N.Y.S.2d 182; see Banko/NY. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532; US. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced (see HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 939 N.Y.S.2d 120; Bank of N. Y. v. Silverberg, 86 A.D.3d at 279, 926 N.Y.S.2d 532; US. Bank, N.A. v. Collymore, 68 A.D.3d at 753, 890 N.Y.S.2d 578). The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing "[e]ither a written assignment of the underlying note or the physical delivery of the note" (US. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578; The plaintiff claims standing, and the caption provides that plaintiff Onewest Bank, FSB, is a successor-in-interest to the FDIC Conservatorship of Indymac Bank. However, no documentary proof was ever presented at trial that Onewest Bank is actually a "successor-in-interest." The complaint does not provide a date 7 of9 [* 7] 7 of 9 INDEX NO. 3701/2010 [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/10/2023 when One West Bank became the Successor-in-interest. The assignment from Federal Deposit Insurance Corporation, as Receiver for Indymac Federal Bank, FSB, successor to Indymac Bank, FSB, assignor, to One West Bank, FSB, as assignee, occurred on March 15, 2010. (Paragraph "D" of ACRIS records). This is significant because the assignment occurred after the commencement of the action on February 11, 2010. "A plaintiff in a mortgage foreclosure action has standing where it is 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 at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363; U.S. Bank N.A. v. Handler, 140 A.D.3d 948, 949, 34 N.Y.S.3d 463)," OneWest Bank, FSB v Berino, 158 AD3d 811, 812, 71 NYS3d 563,565, 2018 NY Slip Op 01318, 2018 WL 1075715 [2d Dept 2018]. In other words, there is no documentary proof that One West Bank, FSB is either a successor-in-interest to the FDIC Conservatorship of Indymac Bank or thlt it was the successor-in-interest prior to the commencement of the action or it was I assigned the note and mortgage prior to the commencement of the action. "Insofar I as the Supreme Court reached its determination that One West had standing by, sua I sponte, 'independently tak(ing) judicial notice of the FDIC website,' this Court has repeatedly cautioned against such independent Internet investigations, especially when conducted without providing notice or an opportunity for the parties to be heard (see First United Mtg. Banking Corp. v. Lawani, 147 A.D.3d 912, 913, 48 8 of9 [* 8] 8 of 9 I INDEX NO. 3701/2010 [FILED: KINGS COUNTY CLERK 09/27/2023] NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/10/2023 N.Y.S.3d 190; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815,818,962 N.Y.S.2d 301)," see OneWest Bank, FSB v Berino, 158 AD3d 811, 813, 71 NYS3d 563,565, 2018 NY Slip Op 01318, 2018 WL 1075715 (2d Dept 2018). Based on the foregoing, the plaintiff has failed to prove standing, and the complaint is dismissed. Dated: September 25, 2023 9 of9 [* 9] 9 of 9

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