Plaintiff's Affidavit Claiming Ownership of the Note not sufficient - Material Issue of Fact Pre
Long Island Foreclosures are at an all time high. There are many Foreclosure Defense attorneys throughout Suffolk and Nassau county fighting for citizens to keep their homes. Local Foreclosure Defense Attorney, Charlie Wallshein, scores a major win for foreclosure defense attorneys throughout New York State but, more specifically, for the First Department. Plaintiff, or bank, firms often will refer to affidavits as business records to show proof of ownership. The problem with such affidavits, as with other sworn statements previously produced by bank attorneys, is that there is an issue of trustworthiness. Sometimes jokingly referring to these affidavits as late notes from a hit 1970s TV show, Charlie takes down the bank in a wonderful decision:
As a preliminary matter, we can consider defendants' legal arguments attacking plaintiff's prima facie showing raised for the first time on appeal (see Chateau D'If Corp. v City of New York, 219 AD2d 205, 209-210 [1st Dept 1996], lv denied 88 NY2d 811 [1996]). Defendants are correct that, generally, an assignment of a mortgage by MERS does not convey the note (see Bank of N.Y. v Silverberg, 86 AD3d 274, 283 [2nd Dept 2011]). While physical delivery of the note can serve as a separate basis to establish standing in a foreclosure action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355 [2015]), plaintiff has not satisfied its burden of proving that the note is in its possession or that it was delivered prior to the commencement of this action.
Even if plaintiff's employee's affidavit sufficiently laid the foundation for the admission of the note as business record (see CPLR 4518[a]), the note itself was not made part of the record (despite being referred to as an exhibit). In addition, although plaintiff's employee swears that based upon this review of business records, he knows that the note was delivered prior to the commencement of this action, the records relied upon for this conclusion are neither provided nor otherwise identified. Moreover, the absence of the note and nonconclusory information about its delivery makes it impossible to determine whether it was delivered from a holder, or plaintiff's standing (see US Bank N.A. v Madero, 125 AD3d 757, 757-758 [2d Dept 2015]); JP Morgan Chase Bank, N.A. v Hill, 133 AD3d 1057, 1058-1059 [3rd Dept 2015]); cf. Aurora Loan Servs. at 360 [note and allonge attached to affidavit]).
This means that summary judgment is denied - the case is Bank of Am., N.A. v Thomas, 2016 NY Slip Op 02910 (1st Dep't, App. Div. April 14, 2016). Summary Judgment is denied and the homeowner survives to continue to fight for his or her home. Great success. If you are facing foreclosure, hire an experienced foreclosure defense attorney. Call the Law Offices of Cory H. Morris.
