HSBC Bank USA, Nat'l Ass'n v. Sage, 112 A.D.3d 1126 (N.Y. App. Div. 2013). · Go Syfert
HSBC Bank USA, Nat'l Ass'n v. Sage, 112 A.D.3d 1126 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
64 citation events (64 in the last 25 years) across 2 distinct courts.
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Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Bac Home Loans Servicing, LP v. Uvino
N.Y. App. Div. · 2017 · confidence medium
Because plaintiff established its standing by physical possession of the consolidated note—constructively, through the possession of its records custodian—plaintiff was not required to prove that any of the notes or mortgages had been validly assigned to it, and any issues concerning assignments were irrelevant (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 362 ; CitiMortgage, Inc. v McKinney, 144 AD3d at 1075 ; HSBC Bank USA, N.A. v Sage, 112 AD3d at 1127-1128).
discussed Cited as authority (rule) HSBC Bank USA, National Ass'n v. Szoffer (2×) also: Cited "see"
N.Y. App. Div. · 2017 · confidence medium
In any event, plaintiff submitted two affidavits from officers of its servicing agent — one in support of its motion for summary judgment and one in reply to defendants’ papers in opposition — each of whom averred that, based upon their respective reviews of the relevant business records, plaintiff was in possession of the promissory note prior to the commencement of this foreclosure action, which is sufficient to confer standing (see JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903, 904 [2015]; HSBC Bank USA, N.A. v Sage, 112 AD3d at 1127-1128; compare JP Morgan Chase Bank, N.A. v Ventu…
discussed Cited as authority (rule) HSBC Bank USA, National Ass'n v. Szoffer (2×) also: Cited "see"
N.Y. App. Div. · 2017 · confidence medium
In any event, plaintiff submitted two affidavits from officers of its servicing agent — one in support of its motion for summary judgment and one in reply to defendants’ papers in opposition — each of whom averred that, based upon their respective reviews of the relevant business records, plaintiff was in possession of the promissory note prior to the commencement of this foreclosure action, which is sufficient to confer standing (see JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903, 904 [2015]; HSBC Bank USA, N.A. v Sage, 112 AD3d at 1127-1128; compare JP Morgan Chase Bank, N.A. v Ventu…
discussed Cited as authority (rule) HSBC Bank USA, National Ass'n v. Szoffer (2×) also: Cited "see"
N.Y. App. Div. · 2017 · confidence medium
In any event, plaintiff submitted two affidavits from officers of its servicing agent — one in support of its motion for summary judgment and one in reply to defendants’ papers in opposition — each of whom averred that, based upon their respective reviews of the relevant business records, plaintiff was in possession of the promissory note prior to the commencement of this foreclosure action, which is sufficient to confer standing (see JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903, 904 [2015]; HSBC Bank USA, N.A. v Sage, 112 AD3d at 1127-1128; compare JP Morgan Chase Bank, N.A. v Ventu…
cited Cited as authority (rule) Panella Descendants' Trust v. Northwest Bay Partners, Ltd.
N.Y. App. Div. · 2017 · confidence medium
Because defendants failed to raise a material issue of fact, we find that Supreme Court properly granted plaintiff’s summary judgment motion (see HSBC Bank USA, N.A. v Sage, 112 AD3d at 1128).
cited Cited as authority (rule) Panella Descendants' Trust v. Northwest Bay Partners, Ltd.
N.Y. App. Div. · 2017 · confidence medium
Because defendants failed to raise a material issue of fact, we find that Supreme Court properly granted plaintiff’s summary judgment motion (see HSBC Bank USA, N.A. v Sage, 112 AD3d at 1128).
discussed Cited as authority (rule) Bank of New York Mellon v. Rutkowski
N.Y. App. Div. · 2017 · confidence medium
The foregoing proof satisfied plaintiff’s prima facie burden as to standing premised on physical possession of the note (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361; HSBC Bank USA, N.A. v Sage, 112 AD3d 1126, 1127-1128 [2013], lvs dismissed 22 NY3d 1172 [2014], 23 NY3d 1015 [2014]; Deutsche Bank Natl.
discussed Cited as authority (rule) Bank of New York Mellon v. Rutkowski
N.Y. App. Div. · 2017 · confidence medium
The foregoing proof satisfied plaintiff’s prima facie burden as to standing premised on physical possession of the note (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361; HSBC Bank USA, N.A. v Sage, 112 AD3d 1126, 1127-1128 [2013], lvs dismissed 22 NY3d 1172 [2014], 23 NY3d 1015 [2014]; Deutsche Bank Natl.
discussed Cited as authority (rule) HSBC Bank USA, National Association v. Sage
N.Y. App. Div. · 2016 · confidence medium
However, as this Court previously determined (112 AD3d at 1127), defendant waived his standing argument by failing to raise it in a pre-answer motion to dismiss or in his answer (see CNB Realty v Stone Cast, Inc., 127 AD3d 1438 , 1439 [2015]; HSBC Bank USA, N.A. v Ashley, 104 AD3d 975, 975-976 [2013], lv dismissed 21 NY3d 956 [2013]).
examined Cited as authority (rule) JP Morgan Chase Bank, National Association v. Hill (6×) also: Cited "see"
N.Y. App. Div. · 2015 · confidence medium
Her affidavit "was adequately based on a review of the books and records of the company maintained in the ordinary course of business" under these circumstances and, contrary to the assertion of my colleagues, her "lack of personal knowledge as to the creation of the documents is not fatal" (HSBC Bank USA, N.A. v Sage, 112 AD3d at 1127; see CPLR 4518; compare Deutsche Bank Natl.
discussed Cited as authority (rule) Deutsche Bank National Trust Company v. Monica
N.Y. App. Div. · 2015 · confidence medium
As such, we conclude that Supreme Court properly found that plaintiff had1 standing to bring the instant foreclosure action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362; Nationstar Mtge., LLC v Davidson, 116 AD3d at 1296; HSBC Bank USA, N.A. v Sage, 112 AD3d at 1127-1128).
discussed Cited "see" Wells Fargo Bank, N.A. v. Vasiliou
N.Y. App. Div. · 2015 · signal: see · confidence high
To the extent that defendants alleged that discovery could lead to evidence of fraud by plaintiff, it is well settled that “[a]negations of mere hope that the discovery will reveal something helpful . . . provide no basis for postponing the determination” of a summary judgment motion (Bryan v City of New York, 206 AD2d 448, 449 [1994]; see HSBC Bank USA, N.A. v Sage, 112 AD3d 1126 , 1128 [2013], lvs dismissed 22 NY3d 1172 [2014], 23 NY3d 1015 [2014]).
discussed Cited "see, e.g." Licalzi v. Wells Fargo Bank, N.A.
N.Y. App. Div. · 2015 · signal: see also · confidence low
Wells Fargo established, prima facie, that it did not make a material misrepresentation of an existing fact *943 in the underlying action (see Tenore v Kantrowitz, Goldhamer & Graifman, P.C., 121 AD3d 775 [2014]; see also HSBC Bank USA, NA. v Sage, 112 AD3d 1126 , 1127-1128 [2013]; Deutsche Bank Natl.
Retrieving the full opinion text from the archive…
HSBC Bank USA, National Association, as Trustee for Ace Securities Corporation Home Equity Loan Trust, Series 2006-OP2 Asset Backed Pass-Through Certificates
v.
Gregory Sage
Appellate Division of the Supreme Court of the State of New York.
Dec 12, 2013.
112 A.D.3d 1126
Rose.
Published
Rose, J.P.

Appeal from an order of the Supreme Court (Melkonian, J.), entered December 20, 2012 in Ulster County, which, among other things, granted plaintiffs motion for summary judgment striking defendant Gregory Sage’s answer.

Plaintiff commenced this foreclosure action alleging that defendant Gregory Sage (hereinafter defendant) defaulted on a[*1127] note secured by a mortgage on his real property. After joinder of issue and an extended period of time during which settlement conferences took place, plaintiff moved for summary judgment striking the answer and appointment of a referee. Defendant cross-moved for, among other things, leave to amend his answer to allege that plaintiff lacked standing to bring the action. Supreme Court granted plaintiffs motion and denied the cross motion. We now affirm.

In a foreclosure action, a mortgagee producing evidence of the mortgage, unpaid note and the mortgagor’s default will be entitled to summary judgment (see Phelps Corp. v Jones, 108 AD3d 814, 815 [2013]; Charter One Bank, FSB v Leone, 45 AD3d 958, 958 [2007]; HSBC Bank USA v Merrill, 37 AD3d 899, 900 [2007], lv dismissed 8 NY3d 967 [2007]). Here, the mortgage had been pooled, securitized and transferred as part of a pooling and service agreement. Plaintiff submitted the mortgage, the note and allonge endorsing the note in blank, a redacted mortgage loan schedule identifying the loan as part of the pool of loans held in trust, excerpts from the pooling and service agreement, and the acceleration letter reflecting defendant’s default. Plaintiff established that the custodian of the trust had physical possession of the note and mortgage prior to the commencement of the action and that, as trustee, plaintiff was responsible for carrying out the terms of the trust. Contrary to defendant’s claim, the affidavit from an assistant vice-president of the mortgage servicing company was adequately based on a review of the books and records of the company maintained in the ordinary course of business, and the lack of personal knowledge as to the creation of the documents is not fatal (see CPLR 3212 [b]; 4518 [a]; Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). Accordingly, plaintiff met its initial burden on the motion for summary judgment and the burden then shifted to defendant to come forward with competent and admissible evidence demonstrating the existence of a defense that properly could raise an issue of fact as to his default (see HSBC Bank USA v Merrill, 37 AD3d at 900; LaSalle Bank N.A. v Kosarovich, 31 AD3d 904, 905 [2006]).

In opposition to the motion, and in support of his cross motion to amend his answer, defendant alleged that plaintiff lacked standing to bring the action. Defendant waived the affirmative defense of standing, however, by virtue of his failure to raise it in a pre-answer motion to dismiss or in the answer (see HSBC Bank USA, N.A. v Ashley, 104 AD3d 975, 975-976 [2013], lv dismissed 21 NY3d 956 [2013]; Kruger v State Farm Mut. Auto. Ins. Co., 79 AD3d 1519, 1520 [2010]). Moreover, plaintiffs phys[*1128] ical possession of the note and mortgage, through its custodian, for over two years prior to commencement of the action is sufficient to confer standing (see Chase Home Fin., LLC v Miciotta, 101 AD3d 1307, 1307 [2012]; Wells Fargo Bank, N.A. v Wine, 90 AD3d 1216, 1217 [2011]; LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912 [2009]), regardless of whether a later written assignment of the mortgage may be a falsified document (see Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 932 [2013]).

Defendant’s remaining allegations of fraud are general in nature and “do not provide the detailed and specific factual allegations of fraudulent conduct necessary to sustain such claims” (Wells Fargo Bank, N.A. v Wine, 90 AD3d at 1218, citing CPLR 3013, 3016 [b]). His further allegations regarding the creation of the allonge and whether he was in default are insufficient to raise an issue of fact inasmuch as they are unsupported by any evidence and, instead, contradicted by the record (see Chase Home Fin., LLC v Miciotta, 101 AD3d at 1308; Charter One Bank, FSB v Leone, 45 AD3d at 959). In light of defendant’s failure to raise an issue of fact, he has not shown that there is merit to his proposed amended answer and, therefore, we discern no abuse of discretion in the denial of his cross motion (see Town of Plattekill v Ace Motocross, Inc., 87 AD3d 788, 789 [2011]; Marotta v Hoy, 55 AD3d 1194, 1196 [2008]). We have considered defendant’s remaining contentions and find them to be similarly unavailing.

Stein, Spain and Garry, JJ., concur. Ordered that the order is affirmed, without costs.