U.S. Bank N.A. v. Weiss

Summary

The Appellate Division, Second Department affirmed an order and judgment of foreclosure and sale in favor of U.S. Bank National Association against Jeno Weiss. The court held that the plaintiff established the mortgage, unpaid note, default, standing, and prima facie compliance with RPAPL 1304 and 1306, while Weiss failed to raise a triable issue of fact.

Holdings

1. The appeal from the order granting summary judgment and an order of reference was dismissed because the right to take a direct appeal from that order terminated when the order and judgment of foreclosure and sale was entered.
2. U.S. Bank established prima facie entitlement to summary judgment by submitting the mortgage, unpaid note, and evidence of default, and established standing by showing that it possessed the note endorsed in blank when the action was commenced.
3. Where a defendant raises RPAPL 1304 as an affirmative defense, the foreclosure plaintiff must make a prima facie showing of strict compliance with the statute; U.S. Bank made that showing here.
4. Where RPAPL 1306 is raised as an affirmative defense, the foreclosure plaintiff must make a prima facie showing of compliance; a conforming proof of filing statement from the New York State Department of Financial Services is sufficient to establish that showing.
5. Weiss failed to raise a triable issue of fact in opposition to U.S. Bank's prima facie showing, so summary judgment and the order and judgment of foreclosure and sale were properly affirmed.

Questions Presented

1. Whether the direct appeal from the interlocutory order granting summary judgment and an order of reference had to be dismissed after entry of the final order and judgment of foreclosure and sale.
2. Whether U.S. Bank established prima facie entitlement to summary judgment in the mortgage-foreclosure action by proving the mortgage, unpaid note, default, and standing.
3. Whether U.S. Bank established prima facie compliance with RPAPL 1304 and RPAPL 1306.
4. Whether Weiss raised a triable issue of fact in opposition to the bank's summary-judgment motion.

Disposition

affirmed