Upon the following papers numbered 1 to7read on this motion by the plaintiff for summary judgment and an order appointing a referee to compute and other relief; Notice of Motion/Order to Show Cause and supporting papers 1 - 3 ; Notice of Cross Motion and supporting papers; Opposing papers:4-5; Reply papers6-7; Other; (and after hearing counsel in support of and in opposition to the motion) it is,

ORDERED that this motion (#006) by the plaintiff for, an order awarding summary judgment dismissing the affirmative defenses advanced in the amended answer of mortgagor defendant Carmen Torres and for summary on the plaintiff's complaint against such defendant together with an order appointing a referee to compute is considered and other relief is considered under CPLR 3212 and RPAPL 1321 and granted only to the extent that the Second, Third and Fourth affirmative defenses asserted in the answer of defendant Torres is denied; and it is further

ORDERED that a certification conference shall be held herein on Tuesday, October 28, 2014 at 9:30 a.m, in the courtroom of the undersigned located in the Annex Building of the Supreme Court at One Court Streee, Riverhead, New York 11901.

In this mortgage foreclosure action, the plaintiff moves for summary judgment against the surviving, mortgagor defendant, Carmen Torres. A prior order awarding such relief to the plaintiff dated October 9, 2010 was vacated by order of this court dated January 28, 2011 upon the stipulation of counsel. The instant motion is opposed by defendant Torres who asserts the several affirmative defenses contained in her amended answer, including that the plaintiff lacks standing to prosecute its claims for foreclosure and sale. While the court finds that the moving papers sufficiently demonstrated that three of the four affirmative defenses contained in the answer of defendant Torres are without merit, the plaintiff failed to adequately demonstrate that the affirmative defense of a lack of standing is without merit.

Entitlement to a judgment of foreclosure may be established, as a matter of law, where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact" (Zanfini v Chandler, 79 AD3d 1031, 912 NYS2d 911 [2d Dept 2010], quoting HSBC Bank USA v Merrill, 37 AD3d 899, 900, 830 NYS2d 598 [2d Dept 2010]; see Plaza Equities, LLC v Lamberti, 118 AD3d 688, 986 NYS2d 843 [2d Dept 2014]; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895, 964 NYS2d 548 [2d Dept 2013]; Solomon v Burden, 104 AD3d 839, 961 NYS2d 535 [2d Dept 2013]; US Bank Natl. Ass'n. v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Baron Assoc., LLC v Garcia Group Enter., 96 AD3d 793, 946 NYS2d 611 [2d Dept 2012]). This standard is enlarged to include a demonstration that the plaintiff is possessed of the requisite standing to pursue its claims where, and only where, the [*2]defense of standing is due and timely asserted by a defendant possessed of such defense (see Plaza Equities, LLC v Lamberti, 118 AD3d 688, supra; see Peak Fin. Partners, Inc. v Brook, 119 AD3d 539, 987 NYS2d 916 [2d Dept 2014]; Kondaur Capital Corp. v McCary, 115 AD3d 649, 981 NYS2d 547 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Rivas, 95 AD3d 1061, 945 NYS2d 328 [2d Dept 2012]; Citimortgage, Inc. v Stosel, 89 AD3d 887, 888, 934 NYS2d 182 [2d Dept 2011]; U.S. Bank, N.A. v Adrian Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]).

"A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that 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 (US Bank, N.A. v Morrison, ___ AD3d _____, 2014 WL 4435687 quoting Kondaur Capital Corp. v McCary, 115 AD3d 649, 650, 981 NYS2d 547 [2d Dept see Bank of NY v Silverberg, 86 AD3d 274, 279, 926 NYS2d 532 [2d Dept 2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753, 890 NYS2d 578 [ 2d Dept 2009]). ^[FN1] The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing "[e]ither a written assignment of the underlying note or the physical delivery of the note" (see Midfirst Bank v Agho, ___ AD3d ____, 2014 WL 3929100 [2d Dept 2014]; US Bank, N.A. v Morrison, ___ AD3d _____, 2014 WL 4435687 [2d Dept 2014]; US Bank of NY v Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011]).

The foregoing rule governing note transfer is the result of the ancient principal/incident rule which provides that a mortgage may not stand separate from the note evidencing the principal debt or obligation because the mortgage is merely security therefor (see Weaver Hardware Co. v Solomovitz, 235 NY 321, 331—332, 139 NE 353 [1923]; US Bank of NY v Silverberg, 86 AD3d 274, 280, supra). Accordingly, a mortgage passes as an incident of the note upon such note's written assignment or upon its physical delivery to the plaintiff prior to commencement of the action (see PHH Mortg. Corp. v Israel, ___ AD3d ___, 2014 WL 4627577 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]; One West Bank FSB v Carey, 104 AD3d 444, 960 NYS2d 306 [1st Dept 2013]; Deutsche Bank Trust Co. Am. v Codio, 94 AD3d 1040, 943 NYS2d 545 [2d Dept 2012]; GRP Loan, LLC v Taylor, 95 AD3d 1172, 945 NYS2d 336 [2d Dept 2012]). In all cases wherein the plaintiff is one other than the original mortgage lender, a valid transfer of the note to the plaintiff prior to the commencement of the action, which effects a valid transfer of the mortgage under the principal/incident rule, will resolve the standing issue in favor of the plaintiff (see PHH Mortg. Corp. v Israel, ___ AD3d ___, 2014 WL 4627577 [2d Dept 2014], supra; [*3]Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, supra; One West Bank FSB v Carey, 104 AD3d 444, supra; US Bank Natl. Ass'n v Cange, 96 AD3d 825,947 NYS2d 522 [2d Dept 2012]; Deutsche Bank Trust Co. Am. v Codio, 94 AD3d 1040, 943 NYS2d 545 [2d Dept 2012] U.S. Bank, N.A. v Adrian Collymore, 68 AD3d 752, supra).

Here, the plaintiff predicates upon its possession of the mortgage note that was endorsed in blank by the original lender on the face of such note. In addition, the plaintiff rests its standing upon an indenture entitled "Assignment of Mortgage" in favor of the plaintiff that was executed by Mortgage Electronic Registration Systems, Inc., [hereinafter "MERS"] as nominee of WMC Mortgage Corp., the original lender,, on January 17, 2008, which predates the commencement of this action on January 22, 2008 by five days.

Mortgage notes may be transferred by mere delivery to a third party transferee as it has long been recognized that "a good assignment is made by delivery only" (see Fryer v Rockefeller, 63 NY 268, 276 [1875]). In addition, it is clear " [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 New York v Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011], quoting Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612, 612, 788 NYS2d 403 [2d Dept 2004]; see also OneWest Bank FSB v Carey, 104 AD3d 444, 960 NYS2d 306 [1st Dept 2013]; Chase Home Finance, LLC v Miciotta, 101 AD3d 1307, 956 NYS 2d 271 [3d Dept 2012]). As a general matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note (see HSBC Bank USA, Nat. Ass'n v Gilbert, 120 AD.3d 756, 991 NYS2d 358 [2d Dept 2014]; U.S. Bank Nat. Ass'n v Faruque, 120 AD3d 575, 2014 WL 3928918 [2d Dept 2014]; Bank of New York v Silverberg, 86 AD3d 274, supra).

In addition to mere delivery, mortgage notes may be transferred to third party "holders" by negotiation provided that such notes qualify as negotiable instruments under the Uniform Commercial Code (see UCC 3—104; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 838 NYS2d 622 [2d Dept. 2007]). New York's Uniform Commercial Code (UCC) §1-201(20) defines "holder" as "a person who is in possession of a document of title, an instrument or an investment security drawn, issued or indorsed to him or to his order or to bearer or in blank" and a person becomes the holder of an instrument "through its negotiation" to him or her (see UCC §3-202[1]). Where the instrument is payable to order, it is negotiated by delivery and all necessary endorsements and where it is payable to the bearer by virtue of an indorsement in blank or otherwise, delivery alone is sufficient to transfer it to a third party (see UCC 3-204[2]; Franzese v Fidelity New York FSB, 214 AD.2d 646, 625 NYS2d 275 [2d Dept 1995]).

Holder status of a note and mortgage may thus arise where the plaintiff possesses a mortgage note which bears, on its face or in an affixed allonge, a special indorsement payable to the order of the plaintiff or where the plaintiff takes possession of a mortgage note that contains an indorsement in blank that is similarly affixed (see UCC §1-201[20]; §3-202; §3-204; §9-203[g]; Spielman v Manufacturers Hanover Trust Co., 60 NY2d 221, 469 NYS2d 69 [1983]; Nationstar Mortgage, LLC v Davidson, 116 AD3d 1294, 983 NYS2d 705 [3d Dept 2014]; Citimortgage, Inc. v Friedman, 109 AD3d 573, supra; Deutsche Bank Trust Co. Am. v Codio, [*4]94 AD3d 1040, supra; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, supra; First Trust Natl. Ass'n v Meisels, 234 AD2d 414, 651 NYS2d 121 [2d Dept 1996]; Deutsche Bank Natl. Trust Co. v Pietranico, 33 Misc 3d 528, 928 NYS2d 818 [Sup. Ct. Suffolk County 2011], aff'd, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013]). As in the case of an unendorsed note, delivery of an endorsed note is essential to holder status.

Appellate case authorities have recently instructed that delivery of a note may be established in the following ways: 1) physical delivery of the note to the plaintiff or its custodial agent, servicer or nominee prior to the commencement of the action (see Kondaur Capital Corp. v McCary, 115 AD3d 649, supra; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 932, supra; Mortgage Electronic Registration Systems, Inc. v Coakley, 41 AD3d 674, supra; 2) delivery of an endorsed note to the endorsee or bearer on a specific date that is prior to the commencement of the action, from which it may be reasonably inferred that physical delivery of the note was made to the plaintiff by the endorser (see Aurora Loan Serv., LLC v Taylor, 114 AD3d 627, 980 NYS2d 475 [2d Dept 2014]); or 3) pre-commencement possession of the note by a custodial agent of a trustee plaintiff named in a pooling and servicing agreement (see HSBC Bank USA, Nat. Ass'n v Sage, 112 AD3d 1126, 977 NYS2d 446 [3d Dept 2013]). Delivery of an instrument such as a promissory note to an agent of the plaintiff may thus effect a valid transfer of the note to the plaintiff (see Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931,supra; Mortgage Electronic Registration Systems, Inc. v Coakley, 41 AD3d 674, supra; Depew Dev., Inc. v AT & A Trucking Corp., 210 AD2d 974, 621 NYS2d 242 [4th Dept 1994]; Wolfin v Security Bank, 170 AD 519, 156 NYS 474, 476 [1915]; see also Corporation Venezolana de Fomento v Vintero Sales Corp., 452 F.Supp. 1108 [SDNY 1978]). The essential element of a constructive delivery is that it be made with the unmistakable intention of transferring title to the instrument (see id. at 1117).

Appellate case authorities have likewise instructed that the absence of due and sufficient proof of note delivery to the plaintiff prior to the commencement of the action warrants the denial of a finding in favor of the plaintiff on the issue of its standing to the extent such issue is premised upon delivery (see HSBC Bank USA, Nat. Ass'n v Gilbert, 120 AD3d 756, 756, supra [2d Dept 2014]; U.S. Bank Nat. Ass'n v Faruque, 120 AD3d 575, 2014 WL 3928918 [2d Dept 2014], supra ; Bank of NY Mellon v Gales, 116 AD3d 723, 982 NYS2d 911[2d Dept 2014]; MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Development, LLC, 116 AD3d 745, 983 NYS2d 604 [2d Dep 2014]; Homecomings Financial, LLC v Guldi, 108 AD3d 506, 969 NYS2d 470 [2d Dept 2013]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 961 NYS2d 200 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d 680, 954 NYS2d 551 [2d Dept 2012]; HSBC Bank USA v Hernandez, 92 AD3d 843, 939 NYS2d 120 [2d Dept 2012]; Deutsche Bank Nat. Trust Co. v Barnett, 88 AD3d 636, 931 NYS2d 630 [2d Dept 2011]). Other appellate case authorities suggest that the mere tender of a mortgage note by an assignor and acceptance by the assignee of the note are sufficient indicia of an effective transfer such note and of the mortgage securing it (see HSBC Bank USA, Nat. Ass'n v Gilbert, [*5]120 AD3d 756, supra; U.S. Bank Nat. Ass'n v Faruque, 120 AD3d 575, supra; US Bank Natl. Ass'n v Cange, 96 AD3d 825, supra; Bank of NY v Silverberg, 86 AD3d 274, supra).

Here, the plaintiff, in attempt to establish its standing, relies upon its possession of the subject mortgage note which contains a payable to the order indorsement in blank from the original lender. However, no allegations of note delivery to the plaintiff are advanced in the affidavit of merit by the plaintiff's servicer. The court is thus left with the nuanced and conclusory allegations of note possession that are advanced in the affirmation of plaintiff's counsel, none of which include specifics as to the date of delivery. Nor are counsel's allegations probative due to the absence of personal knowledge on the part of defense counsel or documentary proof. The court thus finds that the plaintiff failed to satisfy its prima facie burden of establishing, by due and sufficient proof, its possession of the subject note prior to the commencement of this action by the physical delivery of such note. The plaintiff's demand for summary judgment dismissing the First affirmative defense of the defendant and its demand for summary judgment upon its complaint is thus denied to the extent such demands are premised upon the plaintiff's pre-action possession of the endorsed note via delivery.

As indicated above, a pre-action written assignment of a note, with or without a concomitant written assignment of the mortgage, is sufficient to effect a transfer of the note and the mortgage to the assignee, irrespective of delivery, under the principal/incident rule (see PHH Mortg. Corp. v Israel, ___ AD3d ___, 2014 WL 4627577 [2d Dept 2014], supra; MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Development, LLC, 116 AD3d 745, supra). The proper test to determine the validity of an assignment is whether the assignor intended to transfer some present interest to the transferee (see In re Stralem, 303 AD2d 120, 758 NYS2d 345 [2d Dept 2003]; Matter of Jordan, 199 AD2d 998, 605 NYS2d 596 [4th Dept]). When a valid assignment is made, the assignee steps into the assignor's shoes and acquires whatever rights the latter had (In re Stralem, 303 AD2d 120, supra; Furlong v Shalala, 156 F.3d 384, 392 [2d Cir.1998]). An assignment of a mortgage need not be recorded in order to be effective (see Weisblum v Aurora Loan Services, LLC, 85 AD3d 95, 923 NYS2d 609 [2d Dept 2011]).

Nevertheless, the mere assignment by writing of a mortgage does not effect an assignment of the note and it leaves the assignee of the mortgage alone without standing to prosecute a claim for foreclosure and sale (see U.S. Bank Nat. Ass'n v Faruque, 120 AD3d 575, 2014 WL 3928918 [2d Dept 2014]; supra; Bank of New York Mellon v Gales, 116 AD3d 723, supra; Homecomings Financial, LLC v Guldi, 108 AD3d 506, supra; U.S. Bank Nat. Ass'n v Dellarmo, 94 AD3d 746, 942 NYS2d 122 [2d Dept 2012]; US Bank Nat. Ass'n v. Madero, 80 AD3d 751, 915 NYS2dd 612 [2d Dept 2011]; U.S. Bank, N.A. v Adrian Collymore, 68 AD3d 752, supra). In addition, the general rule is that mortgage note assignments must be effective prospectively, rather than retroactively (see Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]) and they must be authored by entities having the requisite interests or authority to make such assignment (see Homecomings Financial, LLC v Guldi, 108 [*6]AD3d 506, supra; Bank of New York v Silverberg, 86 AD3d 274, supra; CWCapital Asset Management, LLC v Great Neck Towers, LLC, 99 AD3d 850, 953 NYS 89 [2d Dept 2012]). A valid written assignment of a mortgage may be made by the Mortgage Electronics Registration System [MERS] (see Saxon Mortg. Services, Inc. v Coakley, 83 AD3d 1038, 921 NYS2d 552 [2d Dept 2011]), provided it was the owner of the note, by delivery or written assignment, at the time such assignment was made (see Mortgage Electronic Registration Systems, Inc. v Coakley, 41 AD3d 674, supra; see also Homecomings Financial, LLC v Guldi, 108 AD3d 506, supra; Bank of New York v Silverberg, 86 AD3d 274, supra), or that it had the requisite authority as agent or nominee of the owner to make such assignment on behalf of the owner (see Deutsche Bank Natl. Trust Co. v Pietranico, 33 Misc 3d 528, 928 NYS2d 818 [Sup. Ct. Suffolk County 2011], aff'd, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013], supra; Fairbanks Capital Corp. v Nagel, 289 AD3d 99, supra; cf., Deutsche Bank Nat. Trust Co v. Haller, 100 AD3d 680, supra).

Here, the plaintiff rests its alternative claim of standing on the pre-action, January 17, 2008 written assignment of the note and mortgage that was executed by MERS as nominee of the original lender under the signature of an attorney whose claims authority under a corporate resolution. The defendant's only challenge to this assignment is "that it does not contain the required language regarding the authority of the individual who executed it" (see ¶ TENTH of the affirmation in opposition by defense counsel). While the court rejects this contention as lacking merit, the court finds, that questions of fact were not eliminated by the proof adduced by the plaintiff in support of its motion as there was insufficient proof that MERS was the lawful owner or holder of the note at the time of the assignment (see Homecomings Financial, LLC v Guldi, 108 AD3d 506, supra; Bank of New York v Silverberg, 86 AD3d 274, supra; cf., Mortgage Electronic Registration Systems, Inc. v Coakley, 41 AD3d 674, supra), or that MERS possessed the requisite authority to sue on behalf of the owner or holder of the note at the time of the commencement of this action (see Deutsche Bank Nat. Trust Co v. Haller, 100 AD3d 680, supra; Bank of New York v Silverberg, 86 AD3d 274, supra; cf., Deutsche Bank Natl. Trust Co. v Pietranico, 33 Misc 3d 528, 928 NYS2d 818 [Sup. Ct. Suffolk County 2011], aff'd, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013], supra; CWCapital Asset Management LLC v. Charney-FPG 114 41st Street, LLC, 84 AD3d 506, supra; Fairbanks Capital Corp. v Nagel, 289 AD3d 99, supra).

In view of the foregoing, the plaintiff's motion for summary judgment is granted only to the extent that the Second, Third and Fourth affirmative defenses asserted in the answer of Carmen Torres are dismissed while the remaining portions of the instant motion are denied due to insufficient proof.

A certification conference shall be held herein on Tuesday, October 28, 2014, at 9:30 a.m in the courtroom of the undersigned located in the Annex Building of the Supreme Court at One Court Street, Riverhead, NY. Counsel are directed to appear thereat ready for such conference.