                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 14, 2016                     522031
________________________________

NATIONSTAR MORTGAGE, LLC,
                    Respondent,
      v

MARC M. ALLING, Also Known                  MEMORANDUM AND ORDER
   as MARC ALLING,
                    Appellant,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   May 25, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


      David Brickman PC, Albany (David Brickman of counsel), for
appellant.

      Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore
(Fernando C. Rivera-Maissonet of counsel) and Sandelands Eyet
LLP, New York City (William C. Sandelands of counsel), for
respondent.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (O'Connor, J.),
entered July 1, 2015 in Albany County, which, among other things,
granted a motion by plaintiff's predecessor in interest for
summary judgment.

      In July 2007, defendant Marc M. Alling (hereinafter
defendant) executed a note in favor of Countrywide Home Loans,
Inc. in the amount of $64,000. The note was secured by a
mortgage in favor of Mortgage Electronic Registration Systems,
                              -2-                522031

Inc., as Countrywide's nominee, and encumbered property located
in the City of Schenectady, Schenectady County. Defendant
defaulted on the note in April 2011 and, in September 2011, the
underlying mortgage was assigned to Bank of America, N.A.,
successor by merger to BAC Home Loans Servicing, LP – formerly
known as Countrywide Home Loans Servicing, LP. Bank of America
sent defendant a demand letter and advised defendant of its
intent to accelerate the loan in August 2012.

      In March 2013, Bank of America commenced this foreclosure
action against, among others, defendant. On or about May 1,
2013, Bank of America and defendant entered into a stipulation
permitting defendant to file an answer on or before May 30,
2013.1 Shortly thereafter, on or about May 14, 2013, Bank of
America assigned the mortgage, "together with the note[] and
obligations therein described," to Nationstar Mortgage, LLC. In
February 2015, Bank of America moved for, among other things,
summary judgment and to substitute Nationstar as the named
plaintiff in this action. Defendant opposed this motion and
cross-moved to amend his answer. Supreme Court, among other
things, granted the motion for summary judgment, appointed a
referee to compute the total sum due and owing, substituted
Nationstar for Bank of America as the named plaintiff and amended
the caption accordingly. Defendant now appeals.

      We affirm. Defendant initially contends that Bank of
America lacked standing to bring this foreclosure action because,
at the time such action was commenced, Bank of America was not
"the holder or assignee of the mortgage and the holder or
assignee of the underlying note" (BAC Home Loans Servicing, LP v


    1
        Although the record references an answer filed on
defendant's behalf through counsel in August 2013, this pleading
does not appear in the record on appeal and, upon inquiry from
this Court, defendant provided only what appears to be a pro se
answer – in letter form – dated April 1, 2013. Defendant also
attempted to file an answer dated March 4, 2015, which was
rejected by Bank of America as untimely. As a result, it does
not appear as though any answer – other than the April 2013 pro
se submission – was ever filed in this matter.
                              -3-                522031

Bixby, 135 AD3d 1009, 1010 [2016] [internal quotation marks and
citation omitted], lv dismissed 27 NY3d 1014 [2016]). This
argument is premised upon defendant's erroneous belief that Bank
of America assigned the note and mortgage to Nationstar prior to
commencing the foreclosure action. As this action was commenced
in March 2013 and the assignment from Bank of America to
Nationstar occurred in May 2013, defendant is simply incorrect.
More to the point, any standing challenge was waived by
defendant's failure to raise this as an affirmative defense in
the only answer with which this Court has been provided or in a
pre-answer motion to dismiss (see CPLR 3018 [b]; 3211 [a] [3];
[e]; CNB Realty v Stone Cast, Inc., 127 AD3d 1438, 1439 [2015];
EMC Mtge. Corp. v Gass, 114 AD3d 1074, 1075 [2014]; HSBC Bank USA
N.A. v Pacyna, 112 AD3d 1246, 1247 [2013]).

      As to the merits, "[t]o establish entitlement to summary
judgment in a foreclosure action, a plaintiff must produce
evidence of the mortgage and unpaid note along with proof of the
mortgagor's default" (Wells Fargo Bank, NA v Ostiguy, 127 AD3d
1375, 1376 [2015]; see U.S. Bank N.A. v Carnivale, 138 AD3d 1220,
1220 [2016]; Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d
737, 738 [2015]; Schantz v O'Sullivan, 288 AD2d 536, 536-537
[2001]). Here, in support of its motion for summary judgment,
Bank of America tendered, among other things, copies of the note,
mortgage and relevant assignment agreements, as well as a copy of
its August 2012 demand letter attesting to defendant's default
and notifying defendant of its intent to accelerate the loan.
Additionally, Bank of America provided an affidavit from
Nationstar's assistant secretary, who, upon reviewing all of the
pertinent records (including those maintained by Bank of America)
and attesting to the assignment of the subject note and mortgage,
averred that defendant was in default commencing with the April
1, 2011 mortgage payment and all subsequent payments thereafter
due. Such proof was sufficient to demonstrate Bank of America's
prima facie entitlement to judgment as a matter of law, thereby
shifting the burden to defendant to raise a question of fact as
to a bona fide defense to foreclosure (see U.S. Bank N.A. v
Godwin, 137 AD3d 1260, 1262 [2016]; PHH Mtge. Corp. v Davis, 111
AD3d 1110, 1111 [2013], lv dismissed 23 NY3d 940 [2014]). In
opposition, defendant argued only that Bank of America failed to
properly credit certain of his mortgage payments made in 2009 and
                                -4-                522031

2010. However, any omission by Bank of America in this regard
does not excuse – and, more to the point, defendant does not
dispute – the fact that he subsequently defaulted on his
obligations in 2011, and the record makes clear that it is the
2011 default that forms the basis for this foreclosure action.
Indeed, in a May 2013 letter addressed to Nationstar, defendant
readily admitted that he "stopped making payments" on the subject
loan in September 2011 – resulting in a delinquency of, by
defendant's count, "20 payments."2 Inasmuch as defendant failed
to tender sufficient proof to raise a question of fact relative
to his admitted default, Supreme Court, among other things,
properly granted Bank of America's motion for summary judgment,
substituted Nationstar for Bank of America as the named plaintiff
and amended the caption accordingly.3

        Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.




    2
        The seeming discrepancy as to the date upon which
defendant's default occurred stems from the fact that the last
payment made by defendant – bearing a transaction date of August
31, 2011 – was applied as a credit to his March 2011 mortgage
payment. Hence, to Bank of America's analysis, defendant was in
default beginning with the April 1, 2011 mortgage payment,
whereas – to defendant's thinking – he was current on his
mortgage until he admittedly stopped making payments in September
2011. Regardless of the date employed, however, there is no
question that defendant was in default when the demand letter was
sent in August 2012 and when this action was commenced in March
2013.
    3
        To the extent that – prior to his admitted default in
September 2011 – certain of defendant's payments may not have
been properly credited by Bank of America and, hence, the amount
actually owed by defendant is in doubt, this is a matter for the
referee to address in computing the sum currently due and owing.
                        -5-                  522031

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
