Wells Fargo Bank, N.A. v. Dorlouis
This text of Wells Fargo Bank, N.A. v. Dorlouis (Wells Fargo Bank, N.A. v. Dorlouis) 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
Wells Fargo Bank, N.A. v Dorlouis
2026 NY Slip Op 04449
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.
Wells Fargo Bank, N.A., etc., respondent,
v
Paulette L. Dorlouis, etc., et al., appellants, et al., defendants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 15, 2026
2024-01975, 2024-01977, (Index No. 504446/19)
Colleen D. Duffy, J.P.
Paul Wooten
Laurence L. Love
Phillip Hom, JJ.
Frank Wharton, New York, NY, for appellants.
Hinshaw & Culbertson LLP, New York, NY (Dana B. Briganti and Schuyler B. Kraus of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Paulette L. Dorlouis and Raymond Roberty appeal from two orders of the Supreme Court, Kings County (Larry D. Martin, J.), both dated October 3, 2023. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Paulette L. Dorlouis and Raymond Roberty and for an order of reference and denied those defendants' cross-motion for summary judgment dismissing the complaint insofar as asserted against them. The second order, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to compute the amounts due to the plaintiff.
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
In February 2019, the plaintiff commenced this action against the defendants Paulette L. Dorlouis and Raymond Roberty (hereinafter together the defendants), among others, to foreclose a mortgage on certain real property located in Brooklyn. The defendants joined issue by interposing separate answers wherein they asserted various affirmative defenses, including, as relevant to this appeal, that the plaintiff lacked standing.
In June 2022, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against them for lack of standing and failure to comply with RPAPL 1304 and 1306.
In an order dated October 3, 2023, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the defendants' cross-motion. In a second order also dated October 3, 2023, the court, among other things, granted the same relief to the plaintiff and appointed a referee to compute the amounts due to the plaintiff. The defendants appeal.
"A plaintiff moving for summary judgment in an action to foreclose a mortgage establishes its prima facie case by producing the note, the mortgage, and evidence of default" (Wells Fargo Bank, N.A. v Dupont, 240 AD3d 550, 551; see U.S. Bank N.A. v Medina, 230 AD3d 1371, 1375). Additionally, where, as here, the plaintiff's standing has been placed in issue by a defendant's [*2]answer, the plaintiff also must prove its standing as part of its prima facie showing (see Bank of Am., N.A. v Barnett, 241 AD3d 1234, 1236; Wells Fargo Bank, N.A. v Dupont, 240 AD3d at 552).
"'A plaintiff may establish a payment default by an admission made in response to a notice to admit, by an affidavit from a person having [personal] knowledge of the facts, or by other evidence in admissible form'" (Bank of N.Y. Mellon v Tedeschi, 240 AD3d 466, 468, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 208; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507-508).
Here, the plaintiff established, prima facie, the defendants' payment default by submitting an affidavit of Gina Feezer, an employee of the plaintiff's prior loan servicer, with a copy of an extract of the subject loan's payment history annexed to it. Notably, the defendants did not object to the plaintiff's submission of Feezer's affidavit, despite it being submitted for the first time in reply, and do not argue on appeal that it was improperly submitted for the first time with reply papers (see U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757, 760-761; LNV Corp. v Sofer, 171 AD3d 1033, 1036). Moreover, the defendants had the opportunity to respond to Feezer's affidavit in their reply papers in further support of their cross-motion, but they did not do so (see U.S. Bank N.A. v Pickering-Robinson, 197 AD3d at 761; LNV Corp. v Sofer, 171 AD3d at 1036). The defendants' contention that Feezer's affidavit failed to state that it was sworn to under penalties of perjury is improperly raised for the first time on appeal and not properly before this Court (see Mitzmacher v Bay Country Owners, 211 AD3d 1025, 1027). Contrary to the defendants' contention, the affidavit and annexed business record were admissible (see Bank of N.Y. Mellon v Gordon, 171 AD3d at 205-208; see also U.S. Bank N.A. v Pickering-Robinson, 197 AD3d at 760-761).
"'A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note'" (Avail 1, LLC v Singh, 239 AD3d 927, 928, quoting Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362). "'Either 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 the mortgage passes with the debt as an inseparable incident'" (DBI/ASG Mtge. Holdings, LLC v Tachtchouk, 241 AD3d 870, 872 [internal quotation marks omitted], quoting U.S. Bank N.A. v Fabbro, 192 AD3d 1178, 1179; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362).
Here, the plaintiff established, prima facie, its standing by demonstrating that a copy of the note, endorsed in blank, was annexed to the summons and complaint when it commenced the action (see Metropolitan Life Ins. Co. v Benton, 241 AD3d 818, 819-820; Bayview Loan Servicing, LLC v Ashkenazi, 233 AD3d 955, 957). "[S]ince standing was established by the annexation of the note to the complaint, the admissibility and sufficiency of the affidavit [submitted in support of the motion] is irrelevant" (Deutsche Bank Trust Co. Ams. v McDonald, 216 AD3d 735, 738 [alteration and internal quotation marks omitted]).
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