Bayview Loan Servicing, LLC v. Warter
Justice Robert J. Muller
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Warter was issued two loans by the Wadsworths evidenced by promissory notes secured by a mortgage on the subject real property. The mortgage was transferred and assigned numerous times, finally to plaintiff, who entered into a loan adjustment agreement with Warter, who later defaulted and plaintiff commenced this foreclosure action. Warter asserted affirmative defenses, including plaintiff's lack of standing. The court found plaintiff produced evidence of the loan documents and Warter's default, and thus established its prima facie entitlement to summary judgment for the requested relief. Warter claimed plaintiff failed to show its physical possession of either the note or supplemental note, and plaintiff admitted it did not have physical possession of the note that was lost by a prior assignee. The court rejected Warter's claim as meritless ruling that either a written assignment of the note or the physical delivery of the note before commencement of a foreclosure action was sufficient to transfer the obligation. As there was a written assignment of both the note and supplemental note, physical delivery was unnecessary, and plaintiff was entitled to dismissal of the counterclaim alleging lack of standing.
