The complaint alleged that on March 20, 2013, MERS assigned the mortgage and the "indebtedness evidenced by the ote" to nonparty J.P. The complaint further alleged that the defendants failed to make the payments due on the note on April 1, 2012, and thereafter. (hereinafter MERS), as nominee for Fieldstone. (hereinafter Fieldstone), which was secured by a mortgage in favor of nonparty Mortgage Electronic Registration Systems, Inc. The complaint alleged that on March 26, 2007, the defendants executed a note in favor of nonparty Fieldstone Mortgage Company, Inc. On July 18, 2014, the plaintiff commenced this action against the defendants Joanne Matamoro and Andreas Jennings (hereinafter together the defendants), among others, to foreclose a mortgage. For reasons analyzed below, we hold that a defendant moving to dismiss a complaint on the ground of the plaintiff's lack of standing does not meet the affirmative burden of proof by merely relying upon any defects that might exist with the certificate of merit submitted by the plaintiff's attorney under CPLR 3012-b, or otherwise, if the certificate of merit fails to address all potential aspects of standing. This appeal implicates the extent to which there is interplay between a CPLR 3211(a) motion to dismiss in the context of a residential mortgage foreclosure action, the attorney certification requirements of CPLR 3012-b, and the moving party's burden of proof. The Virgo Law Firm, Brooklyn, NY (Samantha Virgo of counsel), for appellants.įriedman Vartolo, LLP, New York, NY (Zachary Gold of counsel), for respondent. The order dated October 31, 2018, denied those defendants' motion pursuant to CPLR 2221 for leave to reargue and renew their prior motion. The order dated March 4, 2016, denied those defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. Vaughn, J.), dated March 4, 2016, and entered in Kings County, and (2) an order of the same court dated October 31, 2018. Joanne Matamoro, et al., appellants, et al., defendants.ĪPPEAL by the defendants Joanne Matamoro and Andreas Jennings, in an action to foreclose a mortgage, from (1) an order of the Supreme Court (David B. Wilmington Savings Fund Society, FSB, etc., respondent, This opinion is uncorrected and subject to revision before publication in the Official Reports.Īppellate Division, Second Judicial Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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