                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 6, 2015                    519460
________________________________

DEUTSCHE BANK NATIONAL TRUST
   COMPANY, as Trustee (Not
   in its Individual Capacity
   but Solely as Trustee) in
   Trust for Registered
   Holders of VCM Series
   2009-1,
                    Respondent,             MEMORANDUM AND ORDER
      v

TIMOTHY MONICA, Also Known as
   TIMOTHY I. MONICA, et al.,
                    Appellants,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   May 28, 2015

Before:   Garry, J.P., Egan Jr., Rose and Lynch, JJ.

                             __________


      Law Offices of Ronald J. Kim, PC, Saratoga Springs (Ronald
J. Kim of counsel), for appellants.

      Doonan, Graves & Longoria, LLC, Beverly, Massachusetts
(Stephen M. Valente of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Chauvin, J.),
entered February 13, 2013 in Saratoga County, which, among other
things, granted plaintiff's motion for summary judgment.
      In 2006, defendants Timothy Monica and Kathy Monica
(hereinafter collectively referred to as defendants) executed a
                                 -2-                519460

note in favor of American Home Mortgage Acceptance, Inc.
(hereinafter AHMA) that was secured by a mortgage on real
property located in Saratoga County. For recording purposes, the
mortgage names Mortgage Electronic Registration Systems, Inc.
(hereinafter MERS) as nominee and mortgagee. MERS assigned the
mortgage to plaintiff in 2009. Plaintiff then commenced the
instant foreclosure action in 2011, four years after defendants
defaulted on the loan.1 Following joinder of issue, plaintiff
moved for summary judgment striking defendants' answer and
appointing a referee to compute the amount owed. Defendants
cross-moved for, among other things, summary judgment dismissing
the complaint against them for lack of standing. Supreme Court
granted plaintiff's motion and denied defendants' cross motion.
Defendants appeal.

      "In a foreclosure action, a [plaintiff] producing evidence
of the mortgage, unpaid note and the mortgagor's default will be
entitled to summary judgment" (HSBC Bank USA, N.A. v Sage, 112
AD3d 1126, 1127 [2013], lvs dismissed 22 NY3d 1172 [2014], 23
NY3d 1015 [2014] [citations omitted]; see PHH Mtge. Corp. v
Davis, 111 AD3d 1110, 1111 [2013], lv dismissed 23 NY3d 940
[2014]). "Where, as 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" (Wells Fargo Bank, NA v
Ostiguy, 127 AD3d 1375, 1376 [2015] [citations omitted]; see
Nationstar Mtge., LLC v Catizone, 127 AD3d 1151, 1152 [2015]).
Standing in a mortgage foreclosure action is established by proof
that the plaintiff, at the time the action was commenced, was the
holder or assignee of the mortgage and the holder or assignee of
the underlying note (see Chase Home Fin., LLC v Miciotta, 101
AD3d 1307, 1307 [2012]; Wells Fargo Bank, N.A. v Wine, 90 AD3d
1216, 1217 [2011]). That said, the note, and not the mortgage,
is the dispositive instrument that conveys standing to foreclose
under New York law (see Aurora Loan Servs., LLC v Taylor, 25 NY3d
355, 361-362 [2015]).

         Here, plaintiff produced the mortgage, the unpaid note, the


     1
        The record shows that two prior foreclosure actions were
voluntarily discontinued.
                              -3-                519460

notice of default that was sent to defendants by Acqura Loan
Services – plaintiff's loan servicing company – and an affidavit
by Doug Battin, a senior vice-president of Acqura, who confirmed
defendants' default. While this documentation was sufficient to
satisfy plaintiff's entitlement to an award of summary judgment,
the core question here is whether plaintiff proved that it has
standing to obtain such relief. There is no dispute that
plaintiff received an assignment of the mortgage through MERS,
but the assignee of only a mortgage has no standing (see Bank of
Am., N.A. v Paulsen, 125 AD3d 909, 911 [2015]; Citibank, N.A. v
Herman, 125 AD3d 587, 588 [2015]). Here, plaintiff maintains
that it has standing through its physical possession of the note
at the time that the action was commenced. Since the note has
only an undated indorsement in blank from the original lender, it
does not evidence plaintiff's possessory interest (see Bank of
Am., N.A. v Kyle, 129 AD3d 1168, 1169 [2015]). To establish
physical possession, plaintiff produced the affidavit of Battin
and another Acqura employee recounting that Acqura acquired the
underlying loan documentation from plaintiff in June 2009, imaged
the documentation into its own records system and returned the
original documentation to plaintiff. Based on this
documentation, Battin averred that the note was transferred to
plaintiff "by way of an allonge and/or endorsement."

      Defendants dispute the admissibility of Battin's affidavit
on the ground that the business records about which he attested
were neither made in Acqura's regular course of business nor
within his personal knowledge. While "the mere filing of papers
received from other entities, even if they are retained in the
regular course of business, is insufficient to qualify the
documents as business records" (People v Cratsley, 86 NY2d 81, 90
[1995] [internal quotation marks and citation omitted]), such
records are nonetheless admissible "if the recipient can
establish personal knowledge of the maker's business practices
and procedures, or that the records provided by the maker were
incorporated into the recipient's own records or routinely relied
upon the recipient in its business" (State of New York v 158th
St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 [2012],
lv denied 20 NY3d 858 [2013]). To be admissible, these documents
should carry the indicia of reliability ordinarily associated
with business records (see People v Cratsley, 86 NY2d at 91; One
                              -4-                519460

Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 11 [2011];
Corsi v Town of Bedford, 58 AD3d 225, 231-232 [2008], lv denied
12 NY3d 714 [2009]). Given Acqura's agency status as servicer of
the loan for plaintiff, we agree with plaintiff that the Acqura
records qualify as business records (see CPLR 4518 [a]; People v
Cratsley, 86 NY2d at 90; Merrill Lynch Bus. Fin. Servs. Inc. v
Trataros Constr., Inc., 30 AD3d 336, 337 [2006], lv denied 7 NY3d
715 [2006]).

      "[W]here [a] plaintiff possesses a note that, on its face
or by allonge, contains an indorsement in blank or bears special
indorsement payable to the order of the plaintiff," such party is
a holder of the note and entitled to enforce the instrument
(Wells Fargo Bank, NA v Ostiguy, 127 AD3d at 1376; see Nationstar
Mtge., LLC v Davidson, 116 AD3d 1294, 1296 [2014], lv denied 24
NY3d 905 [2014]; see also Hartford Acc. & Indem. Co. v American
Express Co., 74 NY2d 153, 159 [1989]). Here, Battin's affidavit
established that, prior to the commencement of the action,
plaintiff possessed the underlying note indorsed in blank by AHMA
(compare Bank of Am., N.A. v Kyle, 129 AD3d at 1169). Defendants,
in turn, have failed to raise any question of fact as to whether
plaintiff continued to retain possession. As such, we conclude
that Supreme Court properly found that plaintiff had 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).

     Garry, J.P., Egan Jr. and Rose, JJ., concur.
                        -5-                  519460

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
