May a foreclosures proceed if the mortgage was assigned to the plaintiff but the promissory note was not? That was the issue before the Court in U.S. Bank National Association v. Bresler, Supreme Court of New York, Kings County, 2013 N.Y. Slip Op. 50498 (U), 2013 WL 1339550.
In that opinion, the Court stated that it was clear that under New York law that if the note had not been assigned to the plaintiff, the plaintiff could not foreclose on the mortgage. The issue was whether an endorsement of the note or physical possession of it by the plaintiff would suffice in the absence of an outright assignment contract.
The Court determined that there was insufficient evidence that the plaintiff or its agents “received physical possession of the promissory note” and that the plaintiff had not proven “that a valid transfer was made to the plaintiff by the indorsement” prior to instituting the action.
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