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DEUTSCHE BANK NATIONAL TRUST COMPANY V. CHRISTOPHER C. ISEMAN, ELAINE T. ISEMAN

By Jackie Halpern Weinstein


DEUTSCHE BANK NATIONAL TRUST

COMPANY, AS TRUSTEE FOR HOME LOAN

MORTGAGE LOAN TRUST 2006-1, Plaintiff

-against-

CHRISTOPHER C. ISEMAN, ELAINE T.

ISEMAN et al, Defendants.

 

The following papers, numbers 1 to 8, were read on the motion submitted by Plaintiff seeking summary judgment, an order of reference and other relief in this foreclosure action:

Notice of Motion/Affirmation (2)/ Affirmation of Regularity/Affidavit/Exhibits (1-17)… 1-4

Affirmation in Opposition/Affidavit/Exhibits (A-F)……………………………………………………5-6

Reply Affirmation/Affidavit/Exhibits (18-19) ……………………………………………………………7-8

 

Upon the foregoing papers, it is ORDERED that this motion is disposed of as follows:

Plaintiff seeks various relief in this foreclosure action. In support thereof, it submits affidavits from individuals to substantiate its assertions and outlines the procedural history of this action that it contends establishes its standing in this action. In addition, Plaintiff addresses the affirmative defenses and counterclaims contained in the answer of Defendents Christopher C. Iseman and Elaine T. Iseman (hereinafter collectively “Defendants”) and seeks to disprove any alleged merit contained therein.

 

Defendants oppose Plaintiff’s instant application, arguing that Plaintiff does not have standing to maintain this action and that issues of fact exist that preclude and award of summary judgment.

In its reply papers, Plaintiff defends the legal sufficiency of its submissions and entitlement to summary judgment.

The Appellate Division, Second Department, has succinctly held,

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. The evidence submitted in support of summary judgment must be in a form admissible at trial. In residential mortgage foreclosure actions, as here, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default. Where the plaintiff is not the original lender and standing is at issue, the plaintiff seeking summary judgment must also provide evidence that it received both the mortgage and note by a proper assignment, which can be established by the production of a written assignment of the note or by physical delivery to the plaintiff of the mortgage and note, If the plaintiff failes to satisfy its prima facie burden, the papers submitted in opposition to the motion need not be considered. If the plaintiff makes a prime facie showing, the burden shifts to the defendents to demonstrate ‘the existence of a triable issue of fact as to a bona fide defense to the action’ Midfirst Bank v Agho, 121 AD3d 343, 347-48 [2d Dept 2014] [internal citations omitted].

Plaintiff’s submissions establish its prima facie entitlement to the relief sought in its motion, including its standing to maintain this action. Defendants’ statements in opposition to summary judgment fail to raise a question of material of fact.

Based upon the foregoing, Plaintiff’s motion is granted in its entirety. An Order giving effect to these determinations has been signed simultaneously with this Decision.

The foregoing constitutes the Decision of the Court.

 

 

 

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS