U.S. Bank National Ass'n v. Brjimohan , 153 A.D.3d 1164 ( 2017 )

U.S. Bank N.A. v Brjimohan (2017 NY Slip Op 06601)

U.S. Bank N.A. v Brjimohan

2017 NY Slip Op 06601

Decided on September 26, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 26, 2017
Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.

4476 380793/13

[*1]U.S. Bank National Association, etc., Plaintiff-Respondent,

v

Thakoordai Brjimohan, etc., et al., Defendants-Appellants, New York City Parking Violations Bureau, 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), for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about June 10, 2016, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment against defendants-appellants and denied defendants-appellants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants Brjimohan and Khan executed a mortgage and corresponding note in connection with a residential property located in Bronx County. Plaintiff established a prima facie right to foreclose on the property by producing the note, the mortgage securing the note, and evidence of nonpayment (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 v Fordham Fulton LLC, 84 AD3d 613 [1st Dept 2011]). Plaintiff also established standing (see Kondaur Capital Corp. v McCary, 115 AD3d 649 [2d Dept 2014]), by providing prima facie evidence it was the holder of the underlying note at the time this action was commenced on July 17, 2013 (see B & H Florida Notes LLC v Ashkenazi, 149 AD3d 401 [1st Dept 2017]; U.S. Bank N.A. v Askew, 138 AD3d 402, 402 [1st Dept 2016]).

Plaintiff submitted affidavits of Angela Farmer, the Vice President of Rushmore Loan Management Services LLC, plaintiff's loan servicer and attorney in fact, who attested that, on April 1, 2013, the original note was physically delivered to Rushmore, in its capacity as servicer and attorney in fact for plaintiff, and that Rushmore had retained the note ever since. As delivery occurred before the July 17, 2013 commencement date, this was sufficient to show plaintiff had physical possession of the note prior to commencement of this action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355 [2015]; Wilmington Trust Co. v Walker, 149 AD3d 409 [1st Dept 2017]; Bank of NY Mellon Trust Co. NA v Sachar, 95 AD3d 695 [1st Dept 2012]). Since physical delivery of the note before commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident, defendants' arguments regarding the validity of the mortgage assignment are insufficient to raise a triable issue of fact in opposition (see Aurora Loan Servs., 25 NY3d 355 ; US Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept 2009]).

In addition, Farmer's affidavits, based on her personal knowledge of Rushmore's mailing procedures, described Rushmore's standard business practices with regard to sending RPAPL § 1304 90-day notices and mortgage default letters to borrowers and she affirmed, based on her personal knowledge, that the notices had been sent to defendants to their mortgage notice address in 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 certified mail receipt from the US Post Office. Plaintiff thereby tendered sufficient evidence to demonstrate the absence of material issues as to its strict compliance with RPAPL § 1304 and the notice provisions of the subject mortgage, and this evidence created a rebuttable presumption that defendants actually received these notices.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2017

CLERK