| U.S. Bank N.A. v Brjimohan |
| 2017 NY Slip Op 06601 [153 AD3d 1164] |
| September 26, 2017 |
| Appellate Division, First Department |
[*1]
| U.S. Bank National Association,Respondent, v Thakoordai Brjimohan et al., Appellants, et al.,Defendants. |
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellants.
Knuckles Komosinski & Manfro, LLP, Elmsford (Mark Golab of counsel), forrespondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or aboutJune 10, 2016, which, to the extent appealed from as limited by the briefs, granted plaintiff'smotion for summary judgment against defendants-appellants and denied defendants-appellants'cross motion for summary judgment dismissing the complaint, unanimously affirmed, withoutcosts.
Defendants Brjimohan and Khan executed a mortgage and corresponding note in connectionwith a residential property located in Bronx County. Plaintiff established a prima facie right toforeclose on the property by producing the note, the mortgage securing the note, and evidence ofnonpayment (see ING Real Estate Fin.[USA] LLC v Park Ave. Hotel Acquisition, LLC, 89 AD3d 506 [1st Dept 2011]; JPMCC 2007-CIBC19 Bronx Apts., LLC vFordham Fulton LLC, 84 AD3d 613 [1st Dept 2011]). Plaintiff also established standing(see Kondaur Capital Corp. vMcCary, 115 AD3d 649 [2d Dept 2014]), by providing prima facie evidence it was theholder of the underlying note at the time this action was commenced on July 17, 2013 (see B & H Florida Notes LLC vAshkenazi, 149 AD3d 401 [1st Dept 2017]; U.S. Bank N.A. v Askew, 138 AD3d 402, 402 [1st Dept2016]).
Plaintiff submitted affidavits of Angela Farmer, the Vice President of Rushmore LoanManagement Services LLC, plaintiff's loan servicer and attorney in fact, who attested that, onApril 1, 2013, the original note was physically delivered to Rushmore, in its capacity as servicerand attorney in fact for plaintiff, and that Rushmore had retained the note ever since. As deliveryoccurred before the July 17, 2013 commencement date, this was sufficient to show plaintiff hadphysical possession of the note prior to commencement of this action (see Aurora Loan Servs., LLC v Taylor,25 NY3d 355 [2015]; WilmingtonTrust Co. v Walker, 149 AD3d 409 [1st Dept 2017]; Bank of N.Y. Mellon Trust Co. NA v Sachar, 95 AD3d 695 [1stDept 2012]). Since physical delivery of the note before commencement of the foreclosure actionis sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparableincident, defendants' arguments regarding the validity of the mortgage assignment are insufficientto raise a triable issue of fact in opposition (see Aurora Loan Servs., 25 NY3d 355; U.S. Bank, N.A. v Collymore, 68AD3d 752 [2d Dept 2009]).
In addition, Farmer's affidavits, based on her personal knowledge of Rushmore's mailingprocedures, described Rushmore's standard business practices with regard to sending RPAPL1304 90-day notices and mortgage default letters to borrowers and she affirmed, based on herpersonal knowledge, that the notices had been sent to defendants to their mortgage notice addressin compliance with the requirements of RPAPL 1304 and the subject mortgage. As to the [*2]RPAPL 1304 notice, plaintiff also submitted a copy of the certifiedmail receipt from the US Post Office. Plaintiff thereby tendered sufficient evidence todemonstrate the absence of material issues as to its strict compliance with RPAPL 1304 and thenotice provisions of the subject mortgage, and this evidence created a rebuttable presumption thatdefendants actually received these notices.
We have considered defendants' remaining arguments and find them unavailing.Concur—Sweeny, J.P., Renwick, Kapnick, Kern and Moulton, JJ.