U.S. Bank Trust N.A. v. Mosseri

U.S. Bank Trust N.A. v Mosseri 2026 NY Slip Op 05568 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. U.S. Bank Trust National Association, etc., respondent, v Yvonne A. Mosseri, etc., appellant, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-05868, (Index No. 504057/19) Cheryl E. Chambers, J.P. Deborah A. Dowling Lillian Wan Lourdes M. Ventura, JJ. Jonathan S. Koren, P.C., Brooklyn, NY, for appellant. Friedman Vartolo LLP, Garden City, NY (Stephen J. Vargas of counsel), for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, the defendant Yvonne A. Mosseri appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Carolyn Mazzu Genovesi, J.), dated March 20, 2025. The order and judgment of foreclosure and sale, insofar as appealed from, upon so much of two orders of the same court (Larry D. Martin, J.), both dated June 15, 2023, as granted those branches of the motion of U.S. Bank National Association, as the assignee of Select Portfolio Servicing, Inc., which were to amend the caption to substitute itself as the plaintiff, for summary judgment on the complaint insofar as asserted against the defendant Yvonne A. Mosseri, to strike that defendant's affirmative defense alleging lack of standing, and for an order of reference, and upon so much of an order of the same court (Carolyn Mazzu Genovesi, J.) dated March 20, 2025, as granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale and denied that branch of the cross-motion of the defendant Yvonne A. Mosseri which was to reject the referee's report, granted the same relief to U.S. Bank National Association, confirmed the referee's report, and directed the sale of the subject property. ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were to amend the caption to substitute itself as the plaintiff, for summary judgment on the complaint insofar as asserted against the defendant Yvonne A. Mosseri, to strike that defendant's affirmative defense alleging lack of standing, and for an order of reference are denied, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, and the orders dated June 15, 2023, and March 20, 2025, are modified accordingly. In 2006, the defendant Yvonne A. Mosseri (hereinafter the defendant) executed a note in favor of First Meridian Mortgage, LLC (hereinafter First Meridian). The note was secured by a mortgage on certain real property located in Brooklyn. In 2010 and 2015, the defendant executed agreements with Select Portfolio Servicing, Inc. (hereinafter SPS), First Meridian's successor in interest, modifying the terms of the note (hereinafter the modification agreements). In 2018, the defendant allegedly defaulted under the terms of the note and the modification agreements by failing to remit the monthly payment due for June of that year and for all subsequent months. In February [*2]2019, SPS commenced this action against, among others, the defendant to foreclose the mortgage. The defendant interposed an answer and asserted, among other things, an affirmative defense alleging lack of standing. Thereafter, U.S. Bank National Association (hereinafter U.S. Bank), not in its individual capacity, but solely as trustee of the Truman 2021 SC9 Title Trust (hereinafter the Truman Trust), as SPS's assignee, moved, inter alia, to amend the caption to substitute itself as the plaintiff, for summary judgment on the complaint insofar as asserted against the defendant, to strike the affirmative defense alleging lack of standing, and for an order of reference. In two orders, both dated June 15, 2023, the Supreme Court, among other things, granted those branches of U.S. Bank's motion. In November 2024, U.S. Bank moved, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale. The defendant cross-moved, among other things, to reject the referee's report. In an order dated March 20, 2025, the Supreme Court, inter alia, granted those branches of U.S. Bank's motion and denied that branch of the defendant's cross-motion. In an order and judgment of foreclosure and sale dated March 20, 2025, the court, among other things, granted the same relief to U.S. Bank, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals. Leave to amend a caption to substitute an assignee as the plaintiff may properly be granted upon evidence that the mortgage and underlying debt were assigned to the assignee (see CPLR 1018; U.S. Bank N.A. v Medina, 230 AD3d 1371, 1376; Nationstar Mtge., LLC v Grunwald, 203 AD3d 1170, 1173; Citimortgage, Inc. v Bredehorn, 160 AD3d 803, 804). Here, U.S. Bank failed to establish that the caption should be amended to substitute itself as the plaintiff. U.S. Bank submitted an affidavit by Anthony Younger, a representative of U.S. Bank's servicing agent, attesting that "according to the Records I have reviewed, the original wet ink Note endorsed in[ ] blank . . . was negotiated and delivered to Truman Trust's custodian Wells Fargo in Minneapolis, MN, on May 6, 2021." Younger's affidavit, standing alone, was insufficient to establish that U.S. Bank, as trustee of the Truman Trust, obtained physical possession of the original note and allonge from SPS. "[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted'" (U.S. Bank N.A. v Chrismas-Beck, 219 AD3d 534, 536, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205). Moreover, as relevant here, the records submitted by U.S. Bank included a copy of the note, an allonge endorsed in blank by First Meridian, and a redacted custodial record purporting to show a transaction between U.S. Bank's servicing agent and the custodian, Wells Fargo, in May 2021. Based upon these records, it cannot be ascertained whether the transaction in May 2021 involved a transfer of the original note and allonge and whether U.S. Bank was the real party in interest (see U.S. Bank N.A. v Medina, 230 AD3d at 1376-1377; Citimortgage, Inc. v Brederhorn, 160 AD3d at 804). Accordingly, we reverse the order and judgment of foreclosure and sale insofar as appealed from, deny those branches of U.S. Bank's motion which were to amend the caption to substitute itself as the plaintiff, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's affirmative defense alleging lack of standing, and for an order of reference, and deny those branches of U.S. Bank's motion which were to confirm the referee's report and for a judgment of foreclosure and sale (see Flushing Sav. Bank v Latham, 139 AD3d 663, 664; Woori Am. Bank v Global Universal Group Ltd., 134 AD3d 699, 700; Brighton BK, LLC v Kurbatsky, 131 AD3d 1000, 1001). In light of the foregoing, the parties' remaining contentions have been rendered academic. CHAMBERS, J.P., DOWLING, WAN and VENTURA, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court