Standing Established by Annexing a Blank-Endorsed Note; Non-Owner-Occupancy Rider Renders RPAPL 1304/1306 Inapplicable

A. Precedents Cited

i. Prima facie showing on summary judgment (note, mortgage, default)

The court applied the familiar foreclosure summary-judgment template articulated in Wells Fargo Bank, N.A. v Dupont and U.S. Bank N.A. v Medina: the plaintiff establishes a prima facie case by producing the note, the mortgage, and evidence of default. The Opinion reiterates that this is the baseline evidentiary package needed to shift the burden to defendants.

Because defendants raised standing in their answers, the court also followed Bank of Am., N.A. v Barnett and again Wells Fargo Bank, N.A. v Dupont for the proposition that standing becomes part of the plaintiff’s prima facie showing once placed in issue.

ii. Proving default through admissions, affidavits, or admissible evidence

The decision quotes Bank of N.Y. Mellon v Tedeschi, which in turn quotes Bank of N.Y. Mellon v Gordon, for the evidentiary rule that default can be shown through an admission (e.g., a notice to admit), a properly grounded affidavit from a person with knowledge, or other admissible evidence. The court also cites Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. to reinforce that admissibility principles govern what qualifies as competent proof at summary judgment.

On the business-records issue, the court relied on Bank of N.Y. Mellon v Gordon (and also cited U.S. Bank N.A. v Pickering-Robinson) to support admissibility of the servicer affidavit and annexed payment history extract as business records when properly described and relied upon.

iii. Reply evidence and preservation

The Opinion’s treatment of the plaintiff’s reply-submitted affidavit turns on waiver/preservation. By citing U.S. Bank N.A. v Pickering-Robinson and LNV Corp. v Sofer, the court emphasizes a practical procedural rule: where an affidavit is submitted in reply, the opposing party must timely object (and/or meaningfully respond where the procedural posture permits). Failure to object can result in the evidence being considered, especially where the opponent had an opportunity to address it and did not.

The court further cited Mitzmacher v Bay Country Owners to reject a new appellate argument— defendants’ claim that the affidavit failed to state it was sworn under penalties of perjury—because it was raised for the first time on appeal.

iv. Standing: holder/assignee of the note; blank endorsement; delivery/annexation

The court grounded its standing analysis in well-established authority. It cited Avail 1, LLC v Singh (quoting Dyer Trust 2012-1 v Global World Realty, Inc.) for the principle that standing is shown by demonstrating that, at commencement, the plaintiff was the holder or assignee of the note.

It then cited Aurora Loan Servs., LLC v Taylor (a key Court of Appeals decision) and DBI/ASG Mtge. Holdings, LLC v Tachtchouk (quoting U.S. Bank N.A. v Fabbro) for the complementary rule: transfer of the note via written assignment or physical delivery before commencement suffices, and the mortgage follows the debt as an inseparable incident.

Critically, the court held standing was established because the plaintiff annexed a copy of the note endorsed in blank to the summons and complaint at filing, relying on Metropolitan Life Ins. Co. v Benton and Bayview Loan Servicing, LLC v Ashkenazi. It further cited Deutsche Bank Trust Co. Ams. v McDonald to make a clarifying point: once standing is established by annexation of the note, “the admissibility and sufficiency of the affidavit [submitted in support of the motion] is irrelevant.”

Finally, citing Aurora Loan Servs., LLC v Taylor again, the court explained that where possession of the note establishes standing, disputes about the validity of prior assignments do not matter to standing.

v. RPAPL 1304/1306: strict compliance, burden, and “home loan” scope

The court summarized the statutory scheme using Federal Natl. Mtge. Assn. v Young and Wall St. Mtge. Bankers, Ltd. v Berquin: RPAPL 1304 requires a 90-day notice, with specific content, sent by certified/registered mail and first-class mail. It reiterated, via Citibank, N.A. v Conti-Scheurer and MLB Sub I, LLC v Mathew, that strict compliance is a condition precedent.

Importantly, the court also emphasized (again citing Wall St. Mtge. Bankers, Ltd. v Berquin) that a plaintiff can meet its burden either by proving compliance or by proving RPAPL 1304 is inapplicable because the loan is not a “home loan.” Using RPAPL 1304(6)(a)(1)(iii)’s principal-dwelling requirement, and relying on Wall St. Mtge. Bankers, Ltd. v Berquin and MLB Sub I, LLC v Mathew, the court held that a “1 - 4 FAMILY RIDER” deleting the occupancy requirement supported a finding that the property was not the borrowers’ principal dwelling—so RPAPL 1304 did not apply.

On RPAPL 1306, the court cited B & H Florida Notes LLC v Ashkenazi and Deutsche Bank Natl. Trust Co. v George for the proposition that RPAPL 1306 is triggered by RPAPL 1304; thus, if RPAPL 1304 is inapplicable, so is RPAPL 1306.

B. Legal Reasoning

1. Foreclosure elements and burden shifting: The court applied the standard summary-judgment framework: once the lender tenders competent evidence of the note, mortgage, and default (and, if challenged, standing), the burden shifts to defendants to raise a triable issue of fact or a viable legal bar to foreclosure.
2. Default proof and reply practice: The plaintiff’s default proof hinged on a servicer-affidavit-plus-payment-history record. The court’s reasoning stresses procedural fairness and preservation: defendants neither objected to the reply submission nor meaningfully addressed it when they had an opportunity in their own cross-motion reply, weakening their ability to challenge admissibility later. New objections raised for the first time on appeal were rejected.
3. Standing fixed at commencement and shown by annexation: The decisive standing fact was that the note (endorsed in blank) was annexed to the initiating pleadings. Under Second Department authority, annexation is treated as compelling evidence that the plaintiff possessed the note at commencement and therefore was a “holder.” Once that showing was made, the court treated further disputes about assignments (or the supporting affidavit’s strength) as legally beside the point.
4. RPAPL 1304/1306 limited to “home loans”: The court focused on the statutory definition requiring principal-dwelling occupancy. The “1 - 4 FAMILY RIDER” deleting the occupancy-by-borrower requirement was used as documentary proof that the loan did not meet the “home loan” definition—allowing the plaintiff to prevail without proving mailing of RPAPL 1304 notices and the RPAPL 1306 filing.

C. Impact

• Reinforces annexation-as-standing proof: The case strengthens the practical litigation point that, in the Second Department, attaching a copy of a blank-endorsed note to the complaint can be dispositive of standing, often mooting more granular challenges to assignment chains.
• Encourages early procedural objections: The court’s handling of the reply affidavit underscores that litigants must object promptly to reply evidence and preserve admissibility arguments, or risk waiver and affirmance.
• Clarifies a pathway to defeat RPAPL 1304 defenses: The decision shows how documentary loan terms—here, a rider deleting owner-occupancy— can establish RPAPL 1304 inapplicability as a matter of law, cutting off both RPAPL 1304 and derivative RPAPL 1306 arguments.
• Practical drafting and motion practice consequences: Lenders will likely emphasize (i) pleading packages that include the note copy at commencement, and (ii) loan-document provisions negating principal-dwelling status to streamline summary judgment. Borrowers, in turn, will need to focus on record-based factual disputes (e.g., actual occupancy) and timely evidentiary objections, not merely generalized challenges.