Adam Leitman Bailey, P.C. Wins Appeal for Lender in Highly Contested Foreclosure Proceeding
In Deutsche Bank National Trust Company, as Trustee for Home Loan Mortgage Loan Trust 2006-1 v. Romano, et al., the plaintiff moved for summary judgment and the borrower opposed raising a myriad of baseless claims founded upon conjecture and surmise, including the feigned and all-too-familiar claim that the plaintiff lacks standing.
In its motion for summary judgment, the plaintiff submitted the following evidence in support of its standing to foreclose: (i) the note with allonge to the plaintiff executed by the president of the original mortgagee, (ii) the Assignment of Mortgage to the plaintiff executed prior to commencement of the action, and (iii) an affidavit from the servicer of the loan confirming the written assignments of the note and mortgage to the paintiff, and that the plaintiff was in possession of the original note prior to, and at the time of commencement of, the action.
The affidavit submitted in support also established, and specifically addressed, that the recorded assignment of the mortgage inadvertently listed an incorrect trust year (namely “2005-1” instead of “2006-1”) and noted that the typographical error was de minimus.
Regardless, in opposition, the borrower continued to harp on the fact that the written assignment of mortgage was to a different trust series and, further, challenged the authenticity of the allonge to the plaintiff, lacking any actual defense to the action.
By order entered on July 23, 2014, the lower court granted the plaintiff’s motion for an order of reference. The court recognized that the majority of the borrower’s defenses were plainly frivolous and devoid of merit and, as such, focused on whether the borrower had raised any triable issues of fact with respect to the plaintiff’s standing. The court found in the negative, noting the borrower’s claims were “refuted by the record before the court.”
The borrower appealed on the same standing grounds asserted in opposition to the plaintiff’s motion, arguing that the mortgage was assigned to an entity other than the plaintiff, based upon the de minimus typographical error contained in the written assignment of mortgage.
Adam Leitman Bailey, P.C. successfully argued in its brief and before the appellate panel that the plaintiff established its standing to commence the action as a matter of law by demonstrating through submission of credible evidence that the note and mortgage were validly assigned to the plaintiff prior to commencement of the action.
Specifically, Adam Leitman Bailey, P.C. argued that (i) the borrower’s allegations regarding the written assignment of the mortgage were de minimus and moot, as a written assignment of mortgage is not necessary, since the note and mortgage were validly assigned to the plaintiff prior to commencement of the action, by allonge and physical delivery of the note and, as such, the mortgage passed with the note as an inseparable incident, (ii) there is no requirement for a plaintiff to prove the authenticity of an allonge in order to establish its standing to foreclose, as production of the allonge alone is sufficient, and (iii) there is no special form or language necessary to effect an assignment, as long as the language shows the intention of the owner to transfer it.
Persuaded by Adam Leitman Bailey, P.C.’s arguments, in a decision and order dated February 22, 2017, the Appellate Division, Second Department, affirmed the lower court’s order granting summary judgment in favor of the plaintiff and, exceptionally, awarded a bill of costs to the plaintiff payable by the borrower.
Jackie Halpern Weinstein, Esq. and another attorney of the Foreclosure Group and Jeffrey R. Metz, Esq. of the Appeals Department at Adam Leitman Bailey, P.C. won this motion and appeal for the note holder.