U.S. Bank National Association, etc., respondent, v. Khadidatou Diakhate, etc., appellant, et al., defendants. (2026)

Submitted—April 7, 2026

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Khadidatou Diakhate appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Cenceria P. Edwards, J.), dated May 27, 2025.  The order and judgment of foreclosure and sale, upon an order of the same court (Noach Dear, J.) dated June 21, 2018, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer, and for an order of reference, granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

On November 16, 2006, Balla Moussa Sagnan (hereinafter the borrower) executed a note in the amount of $496,080 in favor of Mortgage Lenders Network USA, Inc. (hereinafter Mortgage Lenders).  The note was secured by a mortgage on certain real property located in Brooklyn.  The borrower died on December 16, 2009.

On November 16, 2016, the plaintiff, Mortgage Lenders's purported successor in interest, commenced this action to foreclose the mortgage against, among others, the defendant Khadidatou Diakhate, as administrator of the borrower's estate (hereinafter the defendant).  The plaintiff attached a copy of the note to the complaint.  In her answer, the defendant alleged that the plaintiff lacked standing and failed to send her a 90–day notice pursuant to RPAPL 1304.

In February 2018, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference.  In an order dated June 21, 2018, the Supreme Court, among other things, granted those branches of the plaintiff's motion.

In October 2019, the plaintiff moved to confirm a referee's report and for a judgment of foreclosure and sale.  In support of its motion, the plaintiff submitted the report of the referee, who concluded that the borrower's estate owed a total of $799,867.30 on the note as of December 26, 2018.  The referee relied upon an affidavit of Tiffany Hollis, a vice president of Ocwen Loan Servicing, LLC (hereinafter Ocwen), the plaintiff's loan servicer, who averred that she was familiar with Ocwen's records and record-keeping practices.  Hollis attached to her affidavit business records, dated December 26, 2018, reflecting the amount due on the loan as of that date.  In an order and judgment of foreclosure and sale dated May 27, 2025, the Supreme Court granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the property.  The defendant appeals.

“Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” (Citibank, N.A. v. Conti–Scheurer, 172 AD3d 17, 20;  see Tri–State III, LLC v. Litkowski, 239 AD3d 911, 912).  RPAPL 1304(1) provides, in relevant part, that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, ․ including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.”  Contrary to the defendant's contention, the defendant, who was not a borrower, was not entitled to notice pursuant to RPAPL 1304 (see U.S. Bank N.A. v. Lloyd–Lewis, 205 AD3d 838, 839;  HSBC Bank USA, N.A. v. Shah, 185 AD3d 794, 796).

Further, the fact that the original lender was involved in bankruptcy proceedings did not affect the plaintiff's standing to foreclose.  A plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361–362;  U.S. Bank N.A. v. Hadar, 206 AD3d 688, 689).  Here, the plaintiff established its standing by attaching a copy of the properly endorsed note to the complaint (see U.S. Bank N.A. v. Hadar, 206 AD3d at 689;  Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725, 726).  The defendant's contentions regarding the assignments of the mortgage are without merit.  A mere assignment of mortgage is irrelevant to the issue of the plaintiff's standing to foreclose, as the mortgage is not the dispositive document of title (see U.S. Bank Trust v. McGlone, 201 AD3d 999, 1001).

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” (U.S. Bank N.A. v. Jong Shin, 224 AD3d 933, 936 [internal quotation marks omitted] ).  “The referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” (U.S. Bank N.A. v. Winnie Realty Group, LLC, 237 AD3d 871, 873 [internal quotation marks omitted] ).

Moreover, “[t]here is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon” (Citigroup v. Kopelowitz, 147 AD3d 1014, 1015;  see Bank of N.Y. Mellon v. Robustello, 245 AD3d 875, 877).  Here, contrary to the defendant's contention, Hollis's affidavit provided a proper foundation for the admission of Ocwen's records.

The defendant's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale.

LASALLE, P.J., CHAMBERS, TAYLOR and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court