Bank of America, N.A. v. Thomas

Appellate Division of the Supreme Court of New York

Bank of America, N.A. v. Thomas

138 A.D.3d 523, 29 N.Y.S.3d 346

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 14, 2016

Docket831 35039/12

StatusPublished

Cited by9 cases

This text of 138 A.D.3d 523 (Bank of America, N.A. v. Thomas) 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.

Bluebook

Bank of America, N.A. v. Thomas, 138 A.D.3d 523, 29 N.Y.S.3d 346 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered November 24, 2014, which, to the extent appealed from as limited by the briefs, granted plaintiff bank’s motion for summary judgment of foreclosure, unanimously reversed, on the law, without costs, and the motion denied.

As a preliminary matter, we can consider defendants’ legal arguments attacking plaintiff’s prima facie showing raised for the first time on appeal (see Chateau D’ If Corp. v City of New York, 219 AD2d 205, 209-210 [1st Dept 1996], lv denied 88 NY2d 811 [1996]). Defendants are correct that, generally, an assignment of a mortgage by Mortgage Electronic Registration Systems does not convey the note (see Bank of N.Y. v Silverberg, 86 AD3d 274, 283 [2d Dept 2011]). While physical delivery of *524 the note can serve as a separate basis to establish standing in a foreclosure action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355 [2015]), plaintiff has not satisfied its burden of proving that the note is in its possession or that it was delivered prior to the commencement of this action.

Even if plaintiff’s employee’s affidavit sufficiently laid the foundation for the admission of the note as business record (see CPLR 4518 [a]), the note itself was not made part of the record (despite being referred to as an exhibit). In addition, although plaintiff’s employee swears that based upon this review of business records, he knows that the note was delivered prior to the commencement of this action, the records relied upon for this conclusion are neither provided nor otherwise identified. Moreover, the absence of the note and nonconclusory information about its delivery makes it impossible to determine whether it was delivered from a holder, or plaintiff’s standing (see US Bank N.A. v Madero, 125 AD3d 757, 757-758 [2d Dept 2015]; JP Morgan Chase Bank, N.A. v Hill, 133 AD3d 1057, 1058-1059 [3d Dept 2015]; cf. Aurora Loan Servs. at 360 [note and allonge attached to affidavit]).

Concur — Mazzarelli, J.P., Acosta, Moskowitz, Gische and Webber, JJ.

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Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered November 24, 2014, which, to the extent appealed from as limited by the briefs, granted plaintiff bank’s motion for summary judgment of foreclosure, unanimously reversed, on the law, without costs, and the motion denied.

As a preliminary matter, we can consider defendants’ legal arguments attacking plaintiff’s prima facie showing raised for the first time on appeal (see Chateau D’ If Corp. v City of New York, 219 AD2d 205, 209-210 [1st Dept 1996], lv denied 88 NY2d 811 [1996]). Defendants are correct that, generally, an assignment of a mortgage by Mortgage Electronic Registration Systems does not convey the note (see Bank of N.Y. v Silverberg, 86 AD3d 274, 283 [2d Dept 2011]). While physical delivery of *524 the note can serve as a separate basis to establish standing in a foreclosure action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355 [2015]), plaintiff has not satisfied its burden of proving that the note is in its possession or that it was delivered prior to the commencement of this action.

Even if plaintiff’s employee’s affidavit sufficiently laid the foundation for the admission of the note as business record (see CPLR 4518 [a]), the note itself was not made part of the record (despite being referred to as an exhibit). In addition, although plaintiff’s employee swears that based upon this review of business records, he knows that the note was delivered prior to the commencement of this action, the records relied upon for this conclusion are neither provided nor otherwise identified. Moreover, the absence of the note and nonconclusory information about its delivery makes it impossible to determine whether it was delivered from a holder, or plaintiff’s standing (see US Bank N.A. v Madero, 125 AD3d 757, 757-758 [2d Dept 2015]; JP Morgan Chase Bank, N.A. v Hill, 133 AD3d 1057, 1058-1059 [3d Dept 2015]; cf. Aurora Loan Servs. at 360 [note and allonge attached to affidavit]).

Concur — Mazzarelli, J.P., Acosta, Moskowitz, Gische and Webber, JJ.

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Bluebook (online)

138 A.D.3d 523, 29 N.Y.S.3d 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-america-na-v-thomas-nyappdiv-2016.

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