DECISION AND ORDER On August 17, 2004, defendant Beneficial Homeowner Service Corporation (hereinafter Beneficial) issued a loan to defendant David Carpentier a/k/a David L. Carpentier (hereinafter defendant) in the amount of $82,947.10. This loan was evidenced by a promissory note and secured by a mortgage on certain real property located at 8851 Route 9 in the Town of Chazy, Clinton County. Defendant made monthly payments under the terms of the loan documents until April 2015, at which time he defaulted. By assignment dated January 12, 2016 and recorded on January 19, 2016, the mortgage was transferred to plaintiff by Caliber Home Loans, Inc. (hereinafter Caliber) as attorney in fact for Beneficial. Plaintiff then commenced this foreclosure action on February 5, 2016. Issue was joined by defendant on or about March 16, 2016, with defendant asserting four affirmative defenses: (1) plaintiff lacks standing; (2) the complaint fails to state a cause of action; (3) plaintiff violated the Truth in Lending Act; and (4) plaintiff violated the notice requirements of RPAPL 1304. Beneficial — the holder of a subordinate mortgage on the subject premises — and defendant Capital One Bank (USA), N.A. (hereinafter Capital One) — a judgment creditor of defendant — were named as necessary parties under RPAPL 1311 (3). Neither has answered or otherwise appeared.Presently before the Court is plaintiff’s motion for (1) summary judgment as against defendant granting the relief requested in the complaint and dismissing his answer; (2) default judgment as against Beneficial and Capital One; (3) amendment of the caption so as to delete “‘John Doe # 1′ to ‘John Doe # 10′”; and (4) appointment of a referee. Each aspect of the motion will be addressed ad seriatim.“A plaintiff can establish entitlement to summary judgment by producing evidence of the mortgage, the unpaid note and the defendant’s default” (Wells Fargo Bank, N.A. v. Walker, 141 AD3d 986, 987 [2016]; see Deutsche Bank Natl. Trust Co. v. Monica, 131 AD3d 737, 738 [2015]; Wells Fargo Bank, NA v. Ostiguy, 127 AD3d 1375, 1376 [2015]). With that said, “‘[w]here…the issue of standing is raised as an affirmative defense, the plaintiff must also prove its standing in order to be entitled to relief’” (Deutsche Bank Natl. Trust Co. v. Monica, 131 AD3d at 738, quoting Wells Fargo Bank, NA v. Ostiguy, 127 AD3d at 1376 [citations omitted]; see Wells Fargo Bank, N.A. v. Walker, 141 AD3d at 987; Nationstar Mtge., LLC v. Catizone, 127 AD3d 1151, 1152 [2015]).“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’” (Chase Home Fin., LLC v. Miciotta, 101 AD3d 1307, 1307 [2012], quoting Bank of N.Y. v. Silverberg, 86 AD3d 274, 279 [2011]; accord Wells Fargo Bank, N.A. v. Wine, 90 AD3d 1216, 1217 [2011]; CitiMortgage, Inc. v. Rosenthal, 88 AD3d 759, 761 [2011]). “Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity” (U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 754 [2009]; see Merritt v. Bartholick, 36 NY 44, 45 [1867]; Kluge v. Fugazy, 145 AD2d 537, 538 [1988]). “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, and the mortgage passes with the debt as an inseparable incident” (U.S. Bank N.A. v. Carnivale, 138 AD3d 1220, 1221 [2016], quoting Onewest Bank, F.S.B. v. Mazzone, 130 AD3d 1399, 1400 [2015]; accord Bank of N.Y. Mellon v. Rutkowski, 148 AD3d 1341, 1341-1342 [2017]; U.S. Bank, N.A. v. Collymore, 68 AD3d at 754).Here, plaintiff has submitted the affidavit of David Nilsen to establish its standing. Nilsen does not list his job title but does state that, “[i]n the regular performance of [his] job functions, [he is] familiar with [the] business records maintained by Caliber…, as attorney in fact and servicer for [plaintiff] for the purpose of servicing mortgage loans.” According to Nilsen, “Wells Fargo Bank, N.A., the Custodian for [plaintiff,] received physical possession of the note on December 8, 2015, which is memorialized by the assignment of mortgage dated January 12, 2016 from Beneficial…to [plaintiff].” Plaintiff has also submitted a copy of the note — with an allonge endorsed to plaintiff from Caliber as attorney in fact for Beneficial and an allonge endorsed to blank from Caliber as attorney in fact for Beneficial — as well as copies of the mortgage and the assignment of mortgage.With that said, plaintiff has failed to submit the power of attorney and servicing agreement whereby it has authorized Caliber to act as its attorney in fact and servicer (compare Bank of N.Y. Mellon v. Rutkowski, 148 AD3d at 1342). It is therefore unclear what — if any — authority Nilsen had to execute an affidavit in support of the motion. Plaintiff has also failed to submit any documents whereby Wells Fargo Bank, N.A. (hereinafter Wells Fargo) is authorized to act as custodian for plaintiff. As a result, it is unclear whether plaintiff received physical possession of the note as Nilsen asserts. Indeed, while Nilsen indicates that transfer of the note was somehow memorialized by the assignment of mortgage, the assignment contains no reference whatsoever to the note. Rather, it transfers only the mortgage and, as such, is a nullity (see Merritt v. Bartholick, 36 NY at 45; U.S. Bank, N.A. v. Collymore, 68 AD3d at 754 [2009]; Kluge v. Fugazy, 145 AD2d at 538). Finally, plaintiff has failed to establish that it remained in possession of the note at the time of commencement of the action — Nilsen makes no statement whatsoever in this regard (see Bank of Am., N.A. v. Kyle, 129 AD3d 1168, 1169-1170 [2015]; Wells Fargo Bank, NA v. Ostiguy, 127 AD3d at 1377; compare Green Tree Servicing LLC v. Bormann, 157 AD3d 1112, 1115 [2018]; Bank of N.Y. Mellon v. Rutkowski, 148 AD3d at 1342).1 Under the circumstances, plaintiff has entirely failed to demonstrate its standing and that aspect of its motion seeking summary judgment as against defendant is denied.To the extent that plaintiff has failed to satisfy its initial burden of demonstrating its entitlement to summary judgment, there is no need to consider defendant’s opposition papers (see Vogler v. Perrault, 149 AD3d 1298, 1299 [2017]). Suffice it to say, nevertheless, that were the papers to be considered defendant has succeeded in raising a triable issue of fact. Specifically, defendant contends that summary judgment must be denied because he served discovery demands on plaintiff on March 16, 2016 — many of which sought information on the issue of standing — and plaintiff has yet to respond. Where, as here, it appears that additional discovery may yield material and relevant evidence, then summary judgment must be denied (see Hobler v. Hussein, 111 AD3d 1006, 1009 [2013]; Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 AD3d 1219, 1222 [2010]).Briefly, defendant also contends that summary judgment must be denied because he entered into a loan modification agreement with plaintiff on February 9, 2017.2 Plaintiff, however, has submitted proof that the agreement was invalidated as a result of defendant’s failure to make payments. This contention, then, is without merit.Turning now to that aspect of the motion which seeks a default judgment as against Beneficial and Capital One, the Court finds that plaintiff has failed to submit an “affidavit made by the party,” as required under CPLR 3215 (f). Indeed, without a copy of the power of attorney and servicing agreement whereby Caliber was authorized to act as plaintiff’s attorney in fact and servicer, Nilsen’s affidavit is insufficient in this regard (see Lasalle Bank N.A. v. Smith, 26 Misc 3d 1239[A], 2010 NY Slip Op 50470[U], *2 [Sup Ct, Kings County 2010]; NYCTL 2004-A Trust v. Alessandro, 25 Misc 3d 1220[A], 2009 NY Slip Op 52204[U], *2 [Sup Ct, Kings County 2009]; NYCTL 2005-A Trust v. Davis, 23 Misc 3d 503, 506 [Sup Ct, Kings County 2009]). This aspect of the motion is therefore denied as well.Insofar as the remainder of the motion is concerned, plaintiff — having provided proof that there are no tenants at the subject premises — is entitled to amend the caption so as to delete “‘John Doe # 1′ to ‘John Doe # 10.’” Plaintiff is not, however, entitled to the appointment of a referee — at least not at this juncture. It has failed to demonstrate its entitlement to summary judgment and discovery remains outstanding.Based upon the foregoing, plaintiff’s motion is granted to the extent that it is entitled to amend the caption so as to delete “‘John Doe # 1′ to ‘John Doe # 10′” and the motion is otherwise denied, with costs.3Therefore, having considered the two Affirmations of Matthew Lizotte, Esq., dated November 10, 2017, submitted in support of the motion; the Affidavit of David Nilsen with Exhibits “A” through “G” attached thereto, sworn to May 18, 2017, submitted in support of the motion; the Affirmation of Daniel Alley, Esq. with Exhibits “A” through “D” attached thereto, dated January 10, 2018, submitted in opposition to the motion; and the Reply Affirmation of Heino Muller, Esq. with Exhibits “A” through “C” attached thereto, dated January 29, 2018, and oral argument having been held on April 27, 2018 with no appearance on behalf of plaintiff and Daniel Alley, Esq. appearing on behalf of defendant, it is herebyORDERED that plaintiff’s motion is granted to the extent that it is entitled to amend the caption so as to delete “‘John Doe # 1′ to ‘John Doe # 10′”; and it is furtherORDERED that the caption is hereby amended to read as follows:U.S. Bank Trust, N.A., AS Trustee For, Lsf9 Master Participation Trust, Plaintiff v. David Carpentier A/K/A David L. Carpentier; Beneficial Homeowner Service Corporation; Capital One Bank (USA), N.A.; Defendants: 2016-0140.and it is furtherORDERED that plaintiff’s motion is otherwise denied, with costs.The above constitutes the Decision and Order of this Court. The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated November 10, 2017 and the submissions enumerated above. Counsel for plaintiff is hereby directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.Dated: May 1, 2018Lake George, New York
