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U.S. BANK NATIONAL ASSOCIATION TR U/S 6/01/98 (HOME EQUITY LOAN TRUST 1998-2), Appellant, v. LINDA ALVAREZ, Respondent.

Ordered that the order is affirmed insofar as appealed from, with costs.

In order to establish its prima facie entitlement to summary judgment in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of default ( see Hoffman v Kraus, 260 AD2d 435, 436; Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467). The burden then shifts to the defendant to demonstrate "the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff" ( id. at 467; see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183).

Here, after the plaintiff, the assignee of a note and mortgage executed by the defendant, established, prima facie, its entitlement to judgment as a matter of law, the defendant raised triable issues of fact concerning the defense of fraud and the counterclaim for rescission, which precluded the granting of summary judgment to the plaintiff ( see Bankers Trust Co. of Cal., N.A. v Sciarpelletti, 28 AD3d 408, 411-412; State St. Bank Trust Co. v Boayke, 249 AD2d 535; Horowitz v Griggs, 245 AD2d 486).

The plaintiff's remaining contentions are without merit.

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U.S. v. ALVAREZ
(Mar 18, 2008)