CWCapital Asset Management LLC v. Charney-FPG 114 41st Street

Appellate Division of the Supreme Court of New York

CWCapital Asset Management LLC v. Charney-FPG 114 41st Street

84 A.D.3d 506, 923 N.Y.S.2d 453

Appellate Division of the Supreme Court of the State of New York·Decided May 10, 2011·Published·Cited by 4 cases

Opinion

Amended order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 10, 2010, which granted plaintiffs motion for appointment of a temporary receiver in a mortgage foreclosure action, unanimously affirmed, with costs. Orders, same court and Justice, entered January 22, 2010, unanimously dismissed, without costs, as superseded by the March 10, 2010 order.

Although a plaintiff in a foreclosure action must generally establish ownership of the mortgage and mortgage note (see Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [2007]), and the plaintiff in this action does not hold the mortgage, it has standing to bring the foreclosure action and seek appointment of a receiver. The foreclosure complaint identified the trustee as the mortgage holder, the action was expressly maintained in plaintiffs capacity as servicing agent, and, in the pooling and servicing agreement, the trustee delegated to plaintiff authority to act with respect to the subject mortgage (see Fairbanks Capital Corp. v Nagel, 289 AD2d 99 [2001]).

Contrary to defendant’s contention, that the mortgage in Fairbanks Capital was actually assigned to the servicing agent is not a “critical fact” distinguishing it from the instant circumstance, inasmuch as the mortgage in that case was assigned to the servicing agent after the foreclosure action had been commenced, so the assignment could not have provided the basis for the servicing agent’s standing (see US Bank N.A. v Madero, 80 AD3d 751, 752 [2011]). There is no requirement that the agent’s authority to foreclose be granted in a document as to which defendant is a party, such as the mortgage instrument or other loan documents (but see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2007]).

We have considered defendant’s other contentions and find them unavailing. Concur — Sweeny, J.P, DeGrasse, Richter and Manzanet-Daniels, JJ.

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Amended order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 10, 2010, which granted plaintiffs motion for appointment of a temporary receiver in a mortgage foreclosure action, unanimously affirmed, with costs. Orders, same court and Justice, entered January 22, 2010, unanimously dismissed, without costs, as superseded by the March 10, 2010 order.

Although a plaintiff in a foreclosure action must generally establish ownership of the mortgage and mortgage note (see Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [2007]), and the plaintiff in this action does not hold the mortgage, it has standing to bring the foreclosure action and seek appointment of a receiver. The foreclosure complaint identified the trustee as the mortgage holder, the action was expressly maintained in plaintiffs capacity as servicing agent, and, in the pooling and servicing agreement, the trustee delegated to plaintiff authority to act with respect to the subject mortgage (see Fairbanks Capital Corp. v Nagel, 289 AD2d 99 [2001]).

Contrary to defendant’s contention, that the mortgage in Fairbanks Capital was actually assigned to the servicing agent is not a “critical fact” distinguishing it from the instant circumstance, inasmuch as the mortgage in that case was assigned to the servicing agent after the foreclosure action had been commenced, so the assignment could not have provided the basis for the servicing agent’s standing (see US Bank N.A. v Madero, 80 AD3d 751, 752 [2011]). There is no requirement that the agent’s authority to foreclose be granted in a document as to which defendant is a party, such as the mortgage instrument or other loan documents (but see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2007]).

We have considered defendant’s other contentions and find them unavailing. Concur — Sweeny, J.P, DeGrasse, Richter and Manzanet-Daniels, JJ.

CWCapital Asset Management LLC v. Charney-FPG 114 41st Street, 84 A.D.3d 506, 923 N.Y.S.2d 453 (N.Y. Ct. App. 2011).

Pincite

84 A.D.3d 506 (CWCapital Asset Management LLC v. Charney-FPG 114 41st Street) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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