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BANK’S PROOF OF DEFENDANT’S DEFAULT INSUFFICIENT AT BOTH THE SUMMARY JUDGMENT AND TRIAL STAGES IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff bank was not entitled to summary judgment in this foreclosure action because it did not submit sufficient proof of defendant’s default. At trial Supreme Court properly held that plaintiff bank did not meet its prima facie burden because the proper foundation for the admission of business records was not provided:

… [P]laintiff failed to submit evidence establishing her default. Wilson [Wells Fargo vice president] failed to attach or incorporate any of Wells Fargo’s business records to her affidavit. Accordingly, her affidavit constituted inadmissible hearsay and lacked probative value … . …

“A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . At the trial in this case, Wiggins [Wells Fargo loan verification officer] testified only that he had access to Wells Fargo’s computerized records. He did not testify that he was familiar with Wells Fargo’s practices in making those records, and he failed to state that he had any knowledge regarding the plaintiff’s records. Moreover, the plaintiff did not attempt to introduce any of the relevant records into evidence. Thus, Wiggins failed to establish an evidentiary basis for his statement that the subject loan was in default … . HSBC Bank USA, Natl. Assn. v Green, 2019 NY Slip Op 06482, Second Dept 9-11-19

 

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