You are here: / / PROOF OF POSSESSION OF THE NOTE WHEN THE ACTION WAS COMMENCED WAS HEARSAY;...
, ,

PROOF OF POSSESSION OF THE NOTE WHEN THE ACTION WAS COMMENCED WAS HEARSAY; PLAINTIFF BANK DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the foreclosure action. The assertions that the note was in plaintiff’s possession when the action was commenced were hearsay and were not supported by business records:

… [T]he plaintiff, to establish its standing to commence this mortgage foreclosure action, submitted an affirmation of Amber A. Jurek, a lawyer with Gross Polowy, LLC (hereinafter Gross Polowy), the plaintiff’s counsel. Jurek stated that she was familiar with Gross Polowy’s records and record-keeping practices. Jurek stated that on January 28, 2015, Gross Polowy received the plaintiff’s file, which included the original endorsed note. Gross Polowy commenced this action on the plaintiff’s behalf on February 26, 2015. According to Jurek, “[o]n that date, Gross Polowy, on behalf of Plaintiff, remained in physical possession of the collateral file, including the original endorsed Note dated March 20, 2012.” The plaintiff also submitted the note, which bore an undated endorsement to the plaintiff. However, Jurek did not set forth any facts based on her personal knowledge to support her statement that the note in the plaintiff’s file was the original endorsed note. Further, the plaintiff failed to attach the business records upon which Jurek relied in her affirmation, and since Jurek did not state that she personally witnessed Gross Polowy receive the plaintiff’s file, her statement is inadmissible hearsay … .

The plaintiff also submitted an affidavit of April H. Hatfield, vice president of loan documentation for the plaintiff. Hatfield stated that she was familiar with the plaintiff’s records and record-keeping practices. Although Hatfield attached the records upon which she relied, she did not state that the plaintiff had possession of the endorsed note at the time the action was commenced. Rather, she relied on Jurek’s affidavit for that fact. Accordingly, Hatfield’s affidavit was also insufficient to establish the plaintiff’s standing.

Finally, the plaintiff did not attach a copy of the note to the complaint when commencing this action. Therefore, the plaintiff failed to establish, prima facie, that it had standing to commence this action … . Wells Fargo Bank, N.A. v Bakth, 2020 NY Slip Op 01382, Second Dept 2-26-20

 

You might also like
ALTHOUGH DEFENDANT PLED GUILTY TO AN ARMED FELONY, HE WAS AN “ELIGIBLE YOUTH” ENTITLED TO CONSIDERATION WHETHER MITIGATING CIRCUMSTANCES JUSTIFIED AFFORDING HIM YOUTHFUL OFFENDER STATUS (SECOND DEPT).
Conviction Reversed—Court Denied For Cause Challenge to Biased Juror Without Eliciting an Unequivocal Assurance the Juror Will Be Impartial
HERE THE FIRST “NAIL AND MAIL” AFFIDAVIT BY THE PROCESS SERVER FAILED TO DEMONSTRATE THE REQUIRED MAILING; A SECOND AFFIDAVIT WAS SUBMITTED WHICH DESCRIBED THE MAILING; THE SECOND AFFIDAVIT DID NOT CURE THE DEFECT IN THE ORIGINAL AFFIDAVIT; THEREFORE A HEARING ON THE VALIDITY OF THE SERVICE OF PROCESS WAS REQUIRED (SECOND DEPT).
Plaintiff Who Had Right of Way Should Have Been Granted Summary Judgment
PLAINTIFF’S EXPERT RAISED A QUESTION OF FACT WHETHER A DELAY IN DIAGNOSIS AFFECTED THE PROGNOSIS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).
PETITIONER REQUESTED AND WAS ENTITLED TO AN EMPLOYEE ASSISTANT TO HELP PREPARE A DEFENSE; DETERMINATION ANNULLED (SECOND DEPT).
Driver In Middle Car of Chain Reaction Accident Entitled to Summary Judgment

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT LIMITED LIABILITY COMPANY FAILED TO FILE ITS CURRENT ADDRESS WITH... PLAINTIFF BANK DID NOT COMPLY WITH RPAPL 1306; DEFENDANT’S CROSS-MOTION...