DEUTSCHE BANK NATIONAL TRUST COMPANY v. KIRSCHENBAUM

11223, 850262/13.

181 A.D.3d 456 (2020)

117 N.Y.S.3d 576

2020 NY Slip Op 01573

Deutsche Bank National Trust Company, as Indenture Trustee under the Indenture Relating to IMH Asset Corps., Collateralized Asset-Backed Bonds, Series 2005-7, Respondent, v. Joshua Kirschenbaum, Appellant, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided March 10, 2020.


Plaintiff failed to make a prima facie case that it had physical possession of the note signed by defendant at the time it commenced the instant action in August 2013. No copy of the note was attached to the original foreclosure complaint. Plaintiff relies on an affidavit from an employee of nonparty Ocwen Loan Servicing, LLC, which did not specify the source of the affiant's conclusion that plaintiff was "physically delivered" the original note on September 29, 2005. Ocwen...

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