Bank of Am., N.A. v. Edouard
This text of Bank of Am., N.A. v. Edouard (Bank of Am., N.A. v. Edouard) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Bank of Am., N.A. v Edouard
2026 NY Slip Op 04393
July 15, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Bank of America, N.A., appellant,
v
Jocelyn Edouard, individually and as administrator of the estate of Jean Edouard, also known as Jean Maurice Edouard, et al., respondents, et al., defendants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 15, 2026
2023-10406, (Index No. 13422/13)
Mark C. Dillon, J.P.
Angela G. Iannacci
Deborah A. Dowling
James P. McCormack, JJ.
Friedman Vartolo LLP, Garden City, NY (Stephen J. Vargas of counsel), for appellant.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), entered March 3, 2023. The order denied the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendants Jocelyn Edouard, individually and as administrator of the estate of Jean Edouard, also known as Jean Maurice Edouard, Shirley Gauthier, and Whitney Edouard, for leave to enter a default judgment against all nonappearing and nonanswering defendants, for leave to amend the caption to substitute US Bank Trust National Association, not in its individual capacity but solely as owner trustee for VRMTG Asset Trust, as the plaintiff, for an order of reference, and for an award of a fee to a guardian ad litem for services rendered.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Jocelyn Edouard, individually and as administrator of the estate of Jean Edouard, also known as Jean Maurice Edouard, Shirley Gauthier, and Whitney Edouard, for leave to enter a default judgment against all nonappearing and nonanswering defendants, for an order of reference, and for an award of a fee to the guardian ad litem for services rendered, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiff.
On November 10, 2006, Jean Edouard, also known as Jean Maurice Edouard (hereinafter the borrower), executed a note in the amount of $401,250 in favor of nonparty GreenPoint Mortgage Funding, Inc. (hereinafter GreenPoint). The note was secured by a mortgage on certain real property located in Nassau County. The borrower died on July 10, 2011.
On November 6, 2013, the plaintiff, Bank of America, N.A., GreenPoint's successor in interest, commenced the instant action to foreclose the mortgage against, among others, Jocelyn Edouard, as administrator of the borrower's estate. Thereafter, the plaintiff moved, inter alia, for leave to amend the complaint to add the borrower's heirs, Jocelyn Edouard, individually, Shirley Gauthier, and Whitney Edouard, among others, as defendants. In an order dated May 30, 2018, the Supreme Court granted the plaintiff's motion, appointed a guardian ad litem for Whitney Edouard, and provided for the payment of a $250 fee to the guardian ad litem upon the filing of a notice of [*2]appearance. Jocelyn Edouard and Shirley Gauthier (hereinafter together the defendants) interposed an answer, asserting various affirmative defenses, including lack of standing. On July 7, 2018, the guardian ad litem submitted, among other things, a consent, a qualifying affidavit, an answer, a waiver, a report, and an affidavit of services rendered seeking a fee of $250.
The plaintiff moved for summary judgment on the complaint insofar as asserted against the defendants and Whitney Edouard, for leave to enter a default judgment against all nonappearing and nonanswering defendants, for leave to amend the caption to substitute US Bank Trust National Association, not in its individual capacity but solely as owner trustee for VRMTG Asset Trust (hereinafter US Bank), as the plaintiff, for an order of reference, and for an award of a fee to the guardian ad litem for services rendered. The defendants opposed those branches of the motion which were for summary judgment on the complaint insofar as asserted against them, for an order of reference, and for leave to amend the caption, contending, inter alia, that the plaintiff lacked standing because it failed to demonstrate that the mortgage had been properly assigned to it. In an order entered March 3, 2023, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
"Generally, in a mortgage foreclosure action, a plaintiff demonstrates its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default" (Deutsche Bank Natl. Trust Co. v Kingsbury, 171 AD3d 871, 871; see Wells Fargo Bank, N.A. v Mitselmakher, 216 AD3d 1056, 1057). Where, as here, 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 on a motion for summary judgment" (Deutsche Bank Natl. Trust Co. v Kingsbury, 171 AD3d at 872). A plaintiff 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 NY3d 355, 361-362; U.S. Bank N.A. v Hadar, 206 AD3d 688, 689). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the . . . action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828; see U.S. Bank N.A. v Hadar, 206 AD3d at 689).
Here, the plaintiff established its standing by attaching a copy of the endorsed note to the complaint when commencing the action (see U.S. Bank N.A. v Hadar, 206 AD3d at 689; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725, 726). In opposition, the defendants failed to raise a triable issue of fact as to the issue of standing. Contrary to the contention of the defendants before the Supreme Court , "a mere assignment of mortgage is irrelevant to the issue of the plaintiff's standing to foreclose, as the mortgage is not the dispositive document of title" (U.S. Bank Trust v McGlone, 201 AD3d 999, 1001, citing Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362).
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Bank of Am., N.A. v. Edouard, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-am-na-v-edouard-nyappdiv-2026.