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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present sufficient evidence of standing to bring the foreclosure action. Therefore the bank’s motion for summary judgment should not have been granted:

Generally, in order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must produce the mortgage, the unpaid note, and evidence of the default … . Where the plaintiff’s standing has been placed in issue by the defendants’ answer, the plaintiff must prove its standing as part of its prima facie showing … .

Here, contrary to the Supreme Court’s determination, the plaintiff failed, prima facie, ]to establish its standing to commence this action. The copy of the note submitted in support of the plaintiff’s motion contained an additional page, entitled “Allonge to Note,” which contained a special indorsement from the original lender to the plaintiff. However, … the plaintiff did not submit any evidence to establish that the purported allonge was so firmly affixed to the note as to become a part thereof (see UCC 3-202[2] …). Wells Fargo Bank, N.A. v Maleno-Fowler, 2021 NY Slip Op 03344, Second Dept 5-26-21

 

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