Summary
In Campaign v Barba (23 AD3d 327 [2d Dept 2005]), the Court instructed that "[t]o establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant's default in payment [ Emphasis added]."
Summary of this case from Wells Fargo Bank v. ReyesOpinion
2005-01402.
November 7, 2005.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated November 10, 2004, which denied, without prejudice to renewal, his motion for summary judgment on the issue of liability against the defendant Rosalie Barba.
Stephen R. Markman, Brooklyn, N.Y., for appellant.
T. Alan White, New York, N.Y., for respondent.
Before: S. Miller, J.P., Krausman, Rivera and Covello, JJ., concur.
Ordered that the order is affirmed, with costs.
To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and mortgage note, ownership of the mortgage, and the defendant's default in payment ( see Household Fin. Realty Corp. of N.Y. v. Winn, 19 AD3d 545; Sears Mtge. Corp. v. Yaghobi, 19 AD3d 402; Ocwen Fed. Bank FSB v. Miller, 18 AD3d 527; U.S. Bank Trust N.A. Trustee v. Butti, 16 AD3d 408). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law. However, in opposition, the defendant Rosalie Barba raised a triable issue of fact.