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Federal National Mortgage v. Youkelsone

Appellate Division of the Supreme Court of New York, Second Department
Mar 17, 2003
755 N.Y.S.2d 730 (N.Y. App. Div. 2003)

Opinion

2002-02234

Argued February 25, 2003.

March 17, 2003.

In an action to foreclose a mortgage, the defendant Nadia Youkelsone appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated January 22, 2002, which denied her motion, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against her.

Nadia Youkelsone, Brooklyn, N.Y., appellant pro se.

Shapiro Dicaro, LLP, Rochester, N.Y. (Robert S. Leni of counsel), for respondent.

Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The defendant Nadia Youkelsone (hereinafter the defendant) executed a note and mortgage to secure a loan of $155,700 to GFI Mortgage Bankers, Inc. (hereinafter GFI), its successors and assigns. The note and mortgage provided that they could be transferred by the lender as of right, without permission of the borrower. GFI assigned the note and mortgage to Fleet Mortgage Corporation (hereinafter Fleet Mortgage), which then merged with Washington Mutual Home Loans, Inc. (hereinafter Washington Mutual). Upon the defendant's alleged default, Washington Mutual assigned the note and mortgage, for consideration, to the plaintiff, the Federal National Mortgage Association, which commenced this forclosure action.

The Supreme Court properly considered the assignment of mortgage proffered in opposition to the defendant's motion to dismiss as evidence in support of the plaintiff's claim (see CPLR 3211[a]; Leon v. Martinez, 84 N.Y.2d 83, 88; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635). Where the plaintiff is the assignee of the mortgage and the underlying note at the time the foreclosure action was commenced, the plaintiff has standing to maintain the action (see First Trust Natl. Assn. v. Meisels, 234 A.D.2d 414; Slutsky v. Blooming Grove Inn, 147 A.D.2d 208). Proof of the merger of Fleet Mortgage and Washington Mutual, or an intermediate assignment to reflect the merger, is not necessary to validate the assignment to the plaintiff (see Banking Law § 602; Barclay's Bank of N.Y. v. Smitty's Ranch, 122 A.D.2d 323, 324; Bank of Long Is. v. Young, 101 App. Div. 88).

The defendant claims that the fact that the plaintiff gave only token consideration for the assignment indicates that the assignment was fraudulent. However, where, as here, the assignment is in writing and signed by the agent of the assignor, the amount of consideration does not affect the validity of the assignment (see General Obligation Law § 5-1107; Whalen v. Gerzof, 206 A.D.2d 688).

The defendant's remaining contentions are without merit.

SANTUCCI, J.P., SMITH, LUCIANO and COZIER, JJ., concur.


Summaries of

Federal National Mortgage v. Youkelsone

Appellate Division of the Supreme Court of New York, Second Department
Mar 17, 2003
755 N.Y.S.2d 730 (N.Y. App. Div. 2003)
Case details for

Federal National Mortgage v. Youkelsone

Case Details

Full title:FEDERAL NATIONAL MORTGAGE ASSOCIATION, respondent, v. NADIA YOUKELSONE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 17, 2003

Citations

755 N.Y.S.2d 730 (N.Y. App. Div. 2003)
755 N.Y.S.2d 730

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