Opinion
10-06-2017
U.S. BANK NATIONAL ASSOCIATION, as Trustee for Structured Asset Investment Loan Trust 2005–4, Plaintiff–Respondent, v. James D. LIEBEL, Defendant–Appellant, et al., Defendants.
Degnan Law Office, Canisteo (Andrew J. Roby of Counsel), for Defendant–Appellant. Hinshaw & Culbertson LLP, New York City (Dana B. Briganti of Counsel), for Plaintiff–Respondent.
Degnan Law Office, Canisteo (Andrew J. Roby of Counsel), for Defendant–Appellant.
Hinshaw & Culbertson LLP, New York City (Dana B. Briganti of Counsel), for Plaintiff–Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM: Plaintiff, as trustee for the Structured Asset Investment Loan Trust 2005–4 (Trust), commenced this action seeking to foreclose a mortgage secured by residential property owned by James D. Liebel (defendant). We conclude that Supreme Court properly granted plaintiff's motion for, inter alia, summary judgment on its complaint, and denied defendant's cross motion for summary judgment dismissing the complaint. Contrary to defendant's contention, plaintiff had standing to commence the foreclosure action. " ‘In an action to foreclose a mortgage, the plaintiff has standing where, at the time the action is commenced, it is the holder or assignee of both the subject mortgage and the underlying note’ " ( JPMorgan Chase Bank, N.A. v. Kobee, 140 A.D.3d 1622, 1623–1624, 32 N.Y.S.3d 767 ; see NNPL Trust Series 2012–1 v. Lunn, 149 A.D.3d 1552, 1553, 53 N.Y.S.3d 774 ). Here, plaintiff sufficiently pleaded in its complaint that it " is the current owner and holder of the aforesaid mortgage and note." Moreover, plaintiff's submissions in support of its motion established that the note and mortgage were assigned to the Trust in 2005 and have not been subsequently reassigned (see NNPL Trust Series 2012–1, 149 A.D.3d at 1554, 53 N.Y.S.3d 774 ; JPMorgan Chase Bank, N.A., 140 A.D.3d at 1624, 32 N.Y.S.3d 767). Defendant failed to raise an issue of fact with respect to plaintiff's standing, and indeed admitted the foregoing facts in his answer and in the submission of his attorney (see generally NNPL Trust Series 2012–1, 149 A.D.3d at 1554, 53 N.Y.S.3d 774 ; JPMorgan Chase Bank, N.A., 140 A.D.3d at 1624, 32 N.Y.S.3d 767).
Contrary to defendant's further contention, we conclude that the court did not abuse its discretion in permitting plaintiff to amend its pleadings to conform to the proof with respect to a 2008 foreclosure action and a 2009 loan modification agreement (see CPLR 3025[c] ; Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90, rearg. denied 55 N.Y.2d 801, 447 N.Y.S.2d 436, 432 N.E.2d 138 ; Murray v. City of New York, 43 N.Y.2d 400, 405–406, 401 N.Y.S.2d 773, 372 N.E.2d 560, rearg. dismissed 45 N.Y.2d 966, 412 N.Y.S.2d 1025, 384 N.E.2d 692 ). We have considered defendant's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.