|Chase Home Fin., LLC v Miciotta|
|2012 NY Slip Op 08602 [101 AD3d 1307]|
|December 13, 2012|
|Appellate Division, Third Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|Chase Home Finance, LLC, Respondent,|
Anthony S. Miciotta, Also Known as Anthony Miciotta, et al., Defendants, and Susan M. Miciotta, Also Known as Susan Miciotta, Appellant.
Fein, Such & Crane, LLP, Rochester (Marc H. Goldberg of Phillips Lytle, LLP, Albany, of
counsel), for respondent.
Fein, Such & Crane, LLP, Rochester (Marc H. Goldberg of Phillips Lytle, LLP, Albany, of counsel), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (R. Sise, J.), entered October 6, 2011 in Saratoga County, which denied a motion by defendant Susan M. Miciotta to, among other things, dismiss the complaint.
In 2003, defendant Anthony S. Miciotta (hereinafter Miciotta) executed a note to borrow $227,000 from Charter One Bank, N.A. Miciotta and his wife, defendant Susan M. Miciotta (hereinafter defendant), also executed a mortgage with Charter One against their real property to secure the note. Charter One assigned the mortgage to JPMorgan Chase Bank, N.A., which later assigned the mortgage to plaintiff. When defendant and Miciotta stopped making payments, plaintiff commenced this action to foreclose on the mortgage. Following joinder of issue, defendant moved for, among other things, dismissal of the complaint on the ground that plaintiff lacked standing to bring the foreclosure action. Supreme Court denied the motion, prompting defendant's appeal. [*2]
We affirm. A plaintiff has standing in a mortgage foreclosure action "where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" (Bank of N.Y. v Silverberg, 86 AD3d 274, 279 ; accord Wells Fargo Bank, N.A. v Wine, 90 AD3d 1216, 1217 ; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 ). The first mortgage assignment, from Charter One to JPMorgan Chase Bank, states that it assigns the mortgage, "together with all rights therein and thereto, all liens created or secured thereby, all obligations therein described, the money due and to become due thereon with interest." The second mortgage assignment, from JPMorgan Chase Bank to plaintiff, transfers the identified mortgage "and all indebtedness secured thereby," specifically noting that the mortgage was "given to secure the payment of a promissory note" in the amount of $227,000. "[N]o special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it" (Bank of N.Y. v Silverberg, 86 AD3d at 280-281 [internal quotation marks and citations omitted]). As found by Supreme Court, the language of these assignments, which were both executed and recorded prior to the commencement of this action, was broad enough to transfer the interest in the mortgage as well as the underlying debt secured by the note. Therefore, plaintiff had standing when it commenced this action because plaintiff was the assignee of both the mortgage and note at that time.[FN*]
Defendant provided nothing more than speculation to support her allegations that the mortgage assignments were fraudulent. Accordingly, Supreme Court properly rejected those allegations. As defendant did not prevail on her motion, she was not entitled to counsel fees, costs or sanctions.
Peters, P.J., Rose, Spain and Garry, JJ., concur. Ordered that the order is affirmed, with costs.