Motion-Secondary: Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series 2007-1 v. Royal Blue Realty Holdings, Inc., The Board Of Managers Of 130 Barrow Street Condominium Homeowners Association, Sing Yu International, Inc. D/B/A Sy Marble And Granite Importers And Distributors, Ny State Department Of Taxation And Finance, State Of New York, New York City, City Of New York Environmental Control Board, City Of New York Parking Violations Bureau, John Doe #1 Through John Doe #10,, The Last Ten Names Being Fictitious And Unknown To The Plaintiff, The Person Or Parties Intended Being The Person Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The Mortgaged Premises Described In The Complaint,

On August 27, 2009 a Motion-Secondary was filed involving a dispute between Deutsche Bank National Trust Company As Trustee For American Home Mortgage Assets Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series 2007-1, and City Of New York Environmental Control Board, City Of New York Parking Violations Bureau, John Doe #1 Through John Doe #10,, New York City, Ny State Department Of Taxation And Finance, Royal Blue Realty Holdings, Inc., Sing Yu International, Inc. D B A Sy Marble And Granite Importers And Distributors, State Of New York, The Board Of Managers Of 130 Barrow Street Condominium Homeowners Association, The Last Ten Names Being Fictitious And Unknown To The Plaintiff, The Person Or Parties Intended Being The Person Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The Mortgaged Premises Described In The Complaint,, for Torts - Other (Conversion) in the District Court of New York County.

Preview
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NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 07/08/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------X
DEUTSCHE BANK NATIONAL TRUST
COMPANY AS TRUSTEE FOR AMERICAN
HOME MORTGAGE ASSETS TRUST 2007-1
MORTGAGE-BACKED PASS-THROUGH Index No: 107030/2009

CERTIFICATES, SERIES 2007-1,
Plaintiff,
-against-

ROYAL BLUE REALTY HOLDINGS, INC., THE AFFIRMATION IN OPPOSITION
BOARD OF MANAGERS OF 130 BARROW TO ROYAL BLUE'S MOTION
STREET CONDOMINIUM HOMEOWNERS TO REARGUE ITS MOTION TO
ASSOCIATION, SING YU INTERNATIONAL, INC. DISMISS PLAINTIFF'S
d/b/a SY MARBLE AND GRANITE IMPORTERS AMENDED COMPLAINT
AND DISTRIBUTORS, NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE,
THE STATE OF NEW YORK, THE CITY OF NEW
YORK, CITY OF NEW YORK ENVIRONMENTAL
CONTROL BOARD, CITY OF NEW YORK
PARKING VIOLATIONS BUREAU, and "JOHN
#1"
DOE through "JOHN DOE #10", the last ten
names being fictitious and unknown to the Plaintiff,
the persons or parties intended being the persons or

parties, ifany, having or claiming an interest in or lien
upon the mortgaged premises described in the

complaint,

Defendants.
____________ _________---------------------------------------------X

Jamie C. Krapf, Esq., pursuant to CPLR 2106 and under the penalties of perjury, affirms

as follows:

1. I am associated with McCabe, Weisberg & Conway, LLC, attorneys for the

plaintiff, Deutsche Bank National Trust Company as Trustee for American Home Mortgage

Assets Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series 2007-1 ("Plaintiff"),

and am familiar with the facts and circumstances in this action.

2. I submit this affirmation in opposition to Defendant Royal Blue Realty Holdings,

Blue"
Inc.'s ("Royal or "Defendant") motion (the "Motion") for an order, pursuant to CPLR

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2221, granting Royal Blue leave to reargue its motion to dismiss Plaintiff's Amended Complaint

(the "Motion to Dismiss") and upon reargument, dismissing Plaintiff's Amended Complaint.

3. As an initial matter, as described in Point I below, Defendant's Motion is

procedurally defective because itfails to include the underlying order Defendant seeks to reargue

and is untimely. The Motion should be denied for either of these reasons alone. Even if the

Motion was procedurally proper, it should be denied because, as described in Point II below,

Defendant fails to identify any fact or law that the Court overlooked or misapprehended when it

denied the Motion to Dismiss as is required on a motion to reargue.

4. In its current Motion, Defendant abandons the arguments itmade in support of its

Motion to Dismiss except its standing argument. In doing so, Defendant concedes that the Court

properly rejected all of Defendant's other arguments when it denied the Motion to Dismiss.

With respect to standing, Defendant recycles the same arguments concerning an alleged "gap in

chain"
the of the written assignment of mortgages already considered and properly rejected by

the Court when it denied the Motion to Dismiss. Defendant's arguments should again be

rejected. Defendant points to nothing the Court overlooked or misapprehended when it denied

the Motion to Dismiss.

5. As further detailed below in Point II(A) and conceded by Defendant, it was

Defendant's burden to make a prima facie showing that Plaintiff lacks standing. Defendant did

not meet this burden. Plaintiff's Amended Complaint sufficiently alleged its standing as

(1) owner of the Note and (2) holder of the Note through its physical possession of the Note prior

to the commencement of the action, either of which is sufficient to confer Plaintiff with standing

to enforce it. Defendant's Motion to Dismiss challenged Plaintiff's standing on the basis of the

assignment of mortgages. However, the mortgage follows the note by operation of law and was

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automatically assigned to Plaintiff when, prior to commencement of the action, Plaintiff took

physical possession of the Note. Thus, the written assignments of mortgages are immaterial to

the standing question and Defendant's arguments regarding those instruments did not shift the

burden to Plaintiff.

6, Moreover, as discussed in Point II(B) below, even assuming that Royal Blue did

meet its burden of showing that Plaintiff lacked standing, all Plaintiff was required to do to

defeat a motion to dismiss, based on the pleadings, was show that the evidence did not preclude

its standing. This it clearly did. Plaintiff's Amended Complaint alleged itwas the owner and

holder of the Note at commencement of the action. The Affidavit of Crystal Kearse (the "Kearse

Aff.") of Plaintiff's loan servicer submitted in opposition to the Motion to Dismiss further

confirmed Plaintiff's standing as owner of the Note (and, at a minimum, sufficiently established

Plaintiff's standing for purposes of the Motion to Dismiss).

gaps"
7. Defendant's argument that Plaintiff did not "fill in the for the assignment of

mortgage is misplaced and, in any event, wrong as a matter of fact. That argument is based on

discovery which took place after the Motion to Dismiss was decided and is not properly raised

on a motion for reargument. At the time the Motion to Dismiss was granted, there was no extant

demand for the assignments of mortgage. Defendant is in essence seeking to have the Court treat

the Motion to Dismiss as a motion for summary judgment, requiring Plaintiff to dispositively

prove its - but that is not the correct standard. In as discussed
standing any event, above,

because the Mortgages Liens follow the Note by operation of law, the assignment of mortgages

are immaterial to whether Plaintiff established itsstanding as the owner and holder of the Note.

8. Further, while Plaintiff was not required to, it did confirm the assignment of the

Mortgage Liens (as defined herein) to Plaintiff (which occurred automatically when Plaintiff

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took possession of the Notes) through written assignments of mortgage which were recorded

with the New York City Register and has since produced those assignments to Defendant. Those

"gap"
assignments show there is no in the chain. Defendant's claim that Plaintiff admitted that

there were gaps in the assignment of mortgage at oral argument is belied by the full transcript of

that argument, Plaintiff's arguments in its opposition to the Motion to Dismiss and the

assignments themselves. Further confirming that denial of the Motion to Dismiss was proper

given the pleading stage, since then, while discovery is not complete, Plaintiff has provided

verified Interrogatory responses confirming its possession of the Note at the commencement of

the action.

RELEVANT FACTUAL BACKGROUND

9. This action seeks to recover monies lent to Royal Blue and Serge Souto in a

transaction secured by the Condominium Unit sought to be foreclosed. The liens, encumbrances,

and mortgages comprising, consolidated by, and intended to be consolidated by the

Consolidation, Extension, and/or Modification Agreement described below are, together, the

subjects of this action.

10. Plaintiff submitted evidence of the following in opposition to the motion to

dismiss:

11. On September 21, 2006, Royal Blue, by its Vice President John Souto, and Serge

Souto, through John Souto acting pursuant to a recorded power-of-attomey, executed a consolidated

adjustable rate note (the "Note") evidencing indebtedness for a mortgage loan in the amount of

$952,000.00 (the "Loan") secured by a condominium unit known as 162-174 Christopher Street,

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Unit 164 a/k/a 130 Barrow Street Unit 164, New York, NY 10014 (the "Mortgaged Premises"). See

the Kearse Aff., Ex. 2 (NYSCEF Doc. No. 391).

12. Also on September 21, 2006, Royal Blue (again by its Vice President, John

Souto) granted a new mortgage encumbering the Mortgaged Premises to secure that portion of

the Note that represented new funds advanced on that date, the amount of $153,177.94. he

Kearse Aff., Ex. 3 (NYSCEF Doc. No. 40).

13. In addition, on September 21, 2006, Royal Blue (again by its Vice President,

Serge and Serge (again through John Souto pursuant to a recorded power-
Souto) Souto, acting

of-attorney) ("Borrowers") executed, acknowledged and delivered to American Home Mortgage,

a Consolidation, Extension, and/or Modification Agreement of even date with the Note

("CEMA"). As fully explained in Schedule A to the CEMA, the CEMA consolidated, extended

and modified a series of prior mortgages granted by Royal Blue encumbering the Mortgaged

Premises, including those arising from a prior severance and splitting agreement, as well as the

New Mortgage (hereinafter, "Mortgage Liens") and specifically provided at paragraph III that

Notes."
"[t]he Consolidated Note will supersede all terms, covenants, and provisions of the

Paragraph IV further provided that "[t]he Consolidated Mortgage...will supersede all terms,

Mortgages."
covenants, and provisions of the See Kearse Aff. ¶ 5.

14. Plaintiff is, and was at the commencement of this action, the owner of the Note

and Mortgage Liens. See Kearse Aff. ¶ 7.

15. Borrowers defaulted under the terms of the Note and CEMA by failing to make

payments commencing with the June 1, 2008 payment. See Kearse Aff. ¶ 13. To-date Defendants

have not cured their default. M.

No."
"NYSCEF Doc. refersto thedocument numbers assignedby the Court's electronicdocket forthis action.

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16. As alleged in the Amended Complaint and confirmed by Plaintiff in verified

Interrogatory Responses, Plaintiff was in possession of the original duly endorsed Note at

commencement of this Action.

PROCEDURAL HISTORY

17. On May 18, 2009, this action was commenced by the filing of the summons,

complaint, and notice of pendency in the Office of the Clerk of New York County. See NYSCEF

- Conversion."
Doc. No. 1, p. 3, "County Clerk Minutes Prior to

18. On July 14, 2017, Plaintiff moved for an order seeking, inter alia, leave to amend

its complaint to add (i) various theories of recovery based on facts previously pleaded, and

(ii)the Estates of Serge Souto and John Souto as parties to the action. See I_d atp. 2.

19. Plaintiff's motion to amend was granted in part by Order of the Honorable Judith

Reeves McMahon, J.S.C. dated January 29, 2018; the Court allowed the amendment of the

Complaint to add the new theories of recovery. (NYSCEF Doc. No. 44).

20. On March 22, 2018, Plaintiff filed its amended complaint (the "Amended

Complaint"). (NYSCEF Doc. 6). The Amended Complaint alleges, inter alia, that the Note,

endorsed in blank, was delivered to Plaintiff prior to commencement of the action and that

Plaintiff is both the holder and owner of the Note and Mortgage Liens. h NYSCEF Doc. No. 6,

¶ THIRTEENTH

21. On May 11, 2018, Defendant filed a Motion to Dismiss pursuant to CPLR

3211(a)(1)(3), (5), and (7). (NYSCEF Doc. Nos. 15-20). The Court denied the Motion to

Dismiss in itsentirety by Decision and Order dated October 16, 2018. (NYSCEF Doc. No. 62).

On November 15, 2018, Plaintiff served Notice of Entry. (NYSCEF Doc. No. 63).

22. On December 13, 2018, the Honorable Judith Reeves McMahon, J.S.C. signed an

Order in Deutsche Bank, etc. v. Royal Blue Realty Holdings, Inc., pending under index no.

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850071/2016 (the "2016 Action"), which deemed Defendant's argument in itsMotion to Dismiss

regarding alleged gaps in the assignment of mortgage chain to be a discovery demand (the

"Demand") and directed the Plaintiff to respond by January 22, 2019. A copy of the Order is

annexed hereto as Exhibit 1.

23. In response, Plaintiff produced documents showing that, contrary to Defendant's

claim, there are no gaps in the chain of assignments. Specifically, Plaintiff produced, amongst

other documents, copies of all recorded assignments of mortgage, including an assignment of the

pre-CEMA mortgages from American Home Mortgage Acceptance, Inc. ("AHMAI") and an

assignment of the Mortgage Liens from American Home Mortgage, the originating lender, to

Plaintiff, which, inexplicably, Defendant still claims do not exist. All were executed prior to the

commencement of this action.

24. On April 26, 2019, Defendant served Plaintiff with a First Set of Interrogatories to

Plaintiff (the "Interrogatories") and a First Notice of Discovery and Inspection (the "Document

Demand") (collectively, the "Discovery Demands"). (NYSCEF Doc. Nos. 87 and 88).

25. On May 31, 2019, Plaintiff responded to Defendant's Discovery Demands and

stated, inter alia, that itwould make documents available for inspection. In addition, Plaintiff

provided a verified Response to the Interrogatories, which, among other things, provided further

evidence of its standing to foreclose. Specifically, Plaintiff stated that on or about October 10,

2006 - over two years prior to the commencement of this action - Deutsche Bank National
(2)

Trust Company, as custodian for Plaintiff, acquired possession of the original Note. (NYSCEF

Doc. No. 120, pgs. 5 & 10, a copy of which is attached hereto as Exhibit 2). In addition, Plaintiff

attached a copy of the Lost Note Affidavit to its Interrogatory responses which confirmed that

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Plaintiff acquired possession of the Note on October 10, 2006. Id.,pg. 10. Plaintiff continues to

have standing under UCC § 3-804.

26. Discovery is ongoing.

ARGUMENT

POINT I

ROYAL BLUE'S MOTION FOR LEAVE TO REARGUE SHOULD BE DENIED
BECAUSE IT IS PROCEDURALLY DEFECTIVE

27. As an initial matter, Defendant's Motion should be denied because it is

procedurally defective. First, Defendant fails to include the order it seeks to reargue, which

renders the Motion procedurally defective. 3P-733, LLC v. Davis, 2019 NY Slip Op 30946 (U)

(Sup. Ct. N.Y. County, 2019) (A motion to reargue is defective if movant does not attach a copy

of the decision and order determining the underlying motion). Defendant, who is represented by

counsel, can offer no excuse for its failure to follow this basic procedural rule.

28. Second, the Motion is untimely. Pursuant to CPLR 2221(d)(3), a motion to

reargue "shall be made within thirty days after service of a copy of the order determining the

entry."
prior motion and written notice of its N.Y. C.P.L.R. 2221(d)(3) (McKinney's 2018).

29. Here, Defendant was served with Notice of Entry of the Decision and Order on

November 15, 2018, and did not make the Motion until almost six (6) months later.

30. While, at Defendant's request, Plaintiff executed a Stipulation extending

Defendant's time to move to reargue until after a motion to dismiss in the 2016 Action was

decided, it did not take any position as to whether the parties were allowed to extend the

statutory time for such a motion. That Stipulation has not been so-ordered and Defendant points

to no authority indicating that the parties had the power to extend the statutory deadline. S_ee

Dekenipp v. Rockefeller Center, Inc., 2008 NY Slip Op 32827(U) (Sup. Ct. N.Y County, 2008)

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(Motion to reargue denied as untimely because CPLR 2221(d)(3) does not confer discretion upon

the courts with respect to belated motions or cross motions for leave to reargue).

POINT II

DEFENDANT FAILS TO DEMONSTRATE THAT THE COURT
OVERLOOKED OR MISAPPREHENDED ANY MATTER OF FACT OR LAW

31. If the Court considers the merits of Defendant's Motion despite its procedural

defects, then pursuant to CPLR 2221, it should stillbe denied. CPLR 2221(d)(2) provides that:

"[a] motion for leave to reargue [] shall be based upon matters of fact or law allegedly

overlooked or misapprehended by the court in determining the prior motion, but shall not

motion."
include any matters of fact not offered on the prior CPLR 2221(d)(2) (emphasis added).

32. The motion "is not to serve as a vehicle to permit the unsuccessful party to argue

decided."
once again the very questions previously Foley v. Roche, 68 A.D.2d 558, 567 (1st

Dep't 1979) (citation omitted); se_e gso Simon v. Mehrari, 16 A.D.3d 664, 665 (2d Dep't 2005)

(the motion "is not designed to allow a litigant to propound the same arguments the court has

already considered, but to point out controlling principles of law or fact that the court may have

overlooked").

33. The reargument motion is also not designed to allow a party to "present

[.]"
arguments different from those originally presented. . . Anthony J. Carter, DDS v. Carter, 81

A.D.3d 819, 821 (2d Dep't 2011). S_ee also CPLR 2221(d)(2); V. Veerasewamy Realty v. Yenom

Corp., 71 A.D.3d 874 (2d Dep't 2010) (same). "A motion for reargument is not an appropriate

advanced."
vehicle for raising new questions . . . which were not previously Simpson v.

Loehmann, 21 N.Y.2d 990 (1968). When the moving party does not demonstrate that the court

facts,"
had "either overlooked or misapprehended the relevant law or the motion should be

denied. V. Veerasewamy Realty, 71 A.D.3d at 874.

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34. Defendant fails to satisfy this standard. Defendant argues that the Court

papers..."
overlooked "relevant and uncontested facts sets forth in Royal Blue's motion but fails

to identify what those facts are that were
"overlooked."
h Affirmation of Martin Shaw dated

May 14, 2019 (the "Shaw Aff."), ¶17. Instead, it repeats its argument that Plaintiff did not

establish that it had standing in 2009 when this action was commenced because of an alleged

chain"
"gap in the of the mortgage assignments related to an assignment from AHMAI. S_ee

Shaw Aff. ¶¶ 38 & 40. But Defendant made this argument below, the Court properly rejected it

as grounds for a motion to dismiss, and Defendant fails to show what the Court overlooked or

misapprehended.

35. As discussed in Point A, supra, it was Defendant's burden to establish prima

facie, that Plaintiff lacked standing. Defendant did not meet this burden. Therefore, the burden

never shifted to Plaintiff to sufficiently establish its standing for purposes of defeating a motion

to dismiss. The Motion to Dismiss was properly denied on that basis alone. In any event, as

discussed in Point B, supra, even if Defendant had met itsburden, Plaintiff did provide sufficient

proof of standing to allow the case to proceed (and has since provided even further proof of its

standing and discovery is stillongoing). Thus, the Court properly denied the Motion to Dismiss.

A. The Court Properly Denied the Motion to Dismiss Because Defendant Failed to

Establish, Prima Facie, That Plaintiff Lacks Standing

36. "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a

construction."
liberal Leon v. Martinez, 614 N.Y.S.2d 972, 974 (1994). Further, the Court must

"...accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every

possible favorable inference, and determine only whether the facts as alleged fit within any

cognizable legal
theory."
Id. h 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d

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144, 151-152 (2002); Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 (2001);

Campaign for Fiscal Equity, Inc. v State of New York, 86 N.Y.2d 307, 318 (1995).

37. A plaintiff in a foreclosure action does not have to establish in itspleading that it

had standing as an essential element of itscause of action, and it isonly if and when standing is

put in issue by a defendant that a plaintiff must meet the additional burden of establishing it.

Nationstar Mtge., LLC v Balducci, 165 A.D.3d 959 (2d Dep't 2018).

38. When a defendant raises standing in a pre-answer motion to dismiss pursuant to

CPLR 3211(a)(3), as Defendant did here, "the burden is on the moving defendant to establish,

law."
prima facie, the plaintiff's lack of standing as a matter of Bank of N.Y. Mellon v.

Chamoula, 170 A.D.3d 788 (2d Dep't 2019) (citations omitted); see also Arch Bay Holdings,

LLC-Series 2010B v. Smith, 136 A.D.3d 719 (2d Dep't 2016). To defeat a motion to dismiss,

the plaintiff does not need to establish its standing as a matter of law, but rather, only has the

burden to raise a question of fact as to its standing. New York Community Bank v. McClendon,

138 A.D.3d 805, 806 (2d Dep't 2016) (Motion to dismiss based on plaintiff's alleged lack of

standing will be defeated if plaintiff's submissions raise a question of fact); see also Arch Bay

Holdings, 136 A.D.3d at 719; U.S. Bank Nat'l Ass'n v. Guy, 125 A.D.3d 845, 847 (2d Dep't

2015).

39. In this case, Defendant does not identify with specificity what the alleged break in

the chain of mortgages but argues that MERS did not have the power to assign the Note and

there is no proof of assignment of the Mortgage Liens from AHMAI. See Shaw Aff., ¶¶27-29,

38-39. However, Defendant's argument is misplaced and is also not accurate.

40. Plaintiff alleged in its Amended Complaint that ittook possession of the original

duly endorsed Note and owned the Note prior to the commencement of the action. This alone

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law.2
was sufficient to allege standing as a matter of It was, therefore, Defendant's burden to

establish prima facie that Plaintiff did not have standing. On reargument, Defendant asserts that

the Court overlooked or misapprehended the facts and again raises itsarguments concerning the

alleged defects in the assignments of mortgage. Defendant made these same arguments on its

Motion to Dismiss and Defendant fails to identify that the Court overlooked or misapprehended

anything with respect to those arguments. In any event, Defendant's argument as to the

assignments does not prima that Plaintiff - who alleged itowned and held the
establish, facie,

- follow operation of supra
Note lacked standing since the Mortgage Liens the Note by law. Sg

Point II(B).

41. Moreover, even though a written assignment of mortgage is not required to

establish standing where the Plaintiff has physical possession of the endorsed note, the transfer

of the Mortgage Liens to Plaintiff was memorialized by written assignments of mortgage, all of

which were executed prior to the commencement of this action. While there was no demand for

the assignments of mortgage at the time the Motion to Dismiss was briefed or decided, Plaintiff

has since produced those documents prior to Defendant's present Motion. Yet, Defendant does

not attach any of those assignments but makes the generalized claim that there is no evidence

proferred by Plaintiff that the Mortgage Liens were assigned by AHMAI. See Shaw Aff. ¶ 38.

42. To the extent that Defendant is that there is no assignment of the pre-
arguing

CEMA mortgages by AHMAI into MERS, Defendant is incorrect. The recorded assignments of

mortgage, which were produced to Defendant, clearly show an assignment by AHMAI into

MERS. Copies of those assignments are attached as Exhibit 3 hereto. To the extent Defendant is

really arguing that the assignment from AHMAI into MERS is ineffective because it was a

2
Bank of New York v. Silverberg, 86 A.D.3d 274 (2d Dep't 2011) citedby Defendant is thereforeinapplicable here
as Plaintiff
does not claim to have standing based on a MERS assignment ofthe Note.

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corrective assignment, Defendant is incorrect. A corrective assignment is effective if done prior

to commencement of the litigation, as the assignment into MERS was done here. See Bankers

(3d
Trust Co. v. Hoovis, 263 A.D.2d 937, 938 Dep't 1999) (Defendant's allegation that plaintiff

did not obtain assignment of mortgage until after commencement of the action rejected since the

assignment of mortgage was effective prior to commencement and defendant did not submit any

proof to contradict plaintiff's proposition that the assignment, including delivery of the note and

mortgage, occurred prior to commencement); see also In re Non-Judicial Foreclosure by Power

of Sale, 26 Misc.3d 1211(A) (Sup. Ct. Broome County, 2009) (The relevant inquiry is whether

plaintiff had ownership of the note and mortgage as of the date of commencement and a written

assignment, even ifpost-dates commencement of the action, is valid if its confirms a prior that

took place by a physical transfer); Fremont Investment & Loan v. Laroc, 21 Misc.3d 1124(A)

(Sup. Ct. Queens County, 2008) (An assignment accomplished by physical delivery of a note and

mortgage prior to the initiation of an action may be confirmed and acknowledged by a later

written assignment).

43. Since Defendant did not make a prima facie showing that Plaintiff lacked

standing, Plaintiff had no obligation to provide evidence of its standing to defeat the Motion to

Dismiss, but, as set forth below, this is exactly what itdid.

B. Plaintiff Established Its Standing

44. "In a mortgage foreclosure action, a plaintiff has standing where it is both the

holder g assignee of the subject mortgage and the holder or assignee of the underlying note at

commenced."
the time the action is U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753 (2d

Dep't 2009) (emphasis added) (citations omitted). The crucial inquiry is whether the plaintiff is

holder or assignee of the note, since when a promissory note is delivered, "the mortgage passes .

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note]."
. ,as an...incident [to the M. at 754; Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280 (2d

(1"
Dep't 2011). See also Flyer v. Sullivan, 284 A.D.697, 398 Dep't 1954); Weaver Hardware

Co. v. Solomovitz, 235 N.Y. 321, 331-332 (1923) ("[A] mortgage given to secure notes is an

them."
incident to the latter and stands or falls with (Citations omitted)).

45. When an entity becomes holder or assignee of a note, it effectively becomes

holder or assignee of the appurtenant mortgage. See Mort. Elec. Registration Sys.. Inc. v.

Coakley, 41 A.D.3d 674, 674 (2d Dep't 2007).

46. Transfer of ownership/assignment of a note can occur either by way of a written

assignment or by physical delivery, and the mortgage follows suit. See Collymore, 68 A.D.3d at

754 ("[e]ither 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

incident"
the mortgage passes with the debt as an inseparable (citations omitted)). Thus, if a

foreclosure plaintiff demonstrates that it became assignee of the note either through written

assignment or by physical delivery of the note to it,the foreclosure plaintiff has pro

Case Info

Judge

Francis A Kahn Iii Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

July 08, 2019

Case Filing Date

August 27, 2009

County

Parties

BERGER, SUZANNE M Attorney for the Plaintiff
BERMAN, MARK ARTHUR Attorney for the Plaintiff
CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD Defendant
CITY OF NEW YORK PARKING VIOLATIONS BUREAU Defendant
DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee for AMERICAN HOME MORTGAGE ASSETS TRUST 2007-1 MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-1 Plaintiff
GARY, CHARLES EDWARD Attorney for the Defendants
GOLDBERG, ELIZABETH J. Attorney for the Plaintiff
JOHN DOE #1 THROUGH JOHN DOE #10, Defendant
KAUFMAN, STANLEY M Attorney for the Defendants
KRAPF, JAMIE C Attorney for the Plaintiff
LASKIN, KAYLA SHAY Attorney for the Defendants
NEW YORK CITY Defendant
NY STATE DEPARTMENT OF TAXATION AND FINANCE Defendant
ROYAL BLUE REALTY HOLDINGS, INC. Defendant
SHAW, MARTIN Attorney for the Defendants
SING YU INTERNATIONAL, INC. d/b/a SY MARBLE and GRANITE IMPORTERS and DISTRIBUTORS Defendant
SPOSATO, MELISSA A. Attorney for the Plaintiff
STATE OF NEW YORK Defendant
THE BOARD OF MANAGERS OF 130 BARROW STREET CONDOMINIUM HOMEOWNERS ASSOCIATION Defendant
the last ten names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendant
TOBIAS, MATTHEW NORMAN Attorney for the Plaintiff
WILSON, DAWN MARIE Attorney for the Plaintiff
ALLISON SANDERS Attorneys for Defendants
HEINO MULLER Attorneys for Plaintiffs
MARK ANGELOV Attorney
KENNETH BRITT Attorneys for Plaintiffs
MATTHEW LIZOTTE Attorneys for Plaintiffs
MARTIN AMARO Attorneys for Defendants
Matthew Loy Attorney
ELIZABETH GLAZER Attorneys for Plaintiffs
WILLIAM HAO Attorney
CHRISTOPHER VALENCIA Attorneys for Plaintiffs
KENNETH DEMARIO Attorney

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