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THE BANK’S DOCUMENTARY EVIDENCE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff bank did not demonstrate standing to bring the foreclosure action and the bank’s motion for summary judgment was properly denied:

“Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . “‘[E]vidence of the contents of business records is admissible only where the records themselves are introduced'” … . Without submission of the business records, a witness’s testimony as to the contents of the records is inadmissible hearsay (see CPLR 4518[a] … ). Here, Herberg’s [bank’s vice president’s] assertion, in effect, that the plaintiff was the holder of the note when it commenced the action appears to be based upon unproduced business records or upon confirmation of information from some other unproduced source, and is therefore not probative on the issue of the plaintiff’s standing … . Wells Fargo Bank, N.A. v Atedgi, 2020 NY Slip Op 07247, Second Dept 12-2-20

 

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ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE DEFENSES OF LACK OF STANDING AND LACK OF PERSONAL JURISDICTION IN THE ANSWER, THE DEFENSES WERE NOT WAIVED AND THE MOTION TO AMEND THE ANSWER SHOULD HAVE BEEN GRANTED; EVEN THOUGH THE STATUTE PROVIDING THAT THE LACK OF STANDING DEFENSE WAS NOT WAIVED WAS NOT ENACTED AT THE TIME THE MOTION WAS DECIDED, THE APPELLATE COURT CAN APPLY THE LAW AS IT EXISTS AT THE TIME OF THE APPELLATE DECISION (SECOND DEPT).
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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL... THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND...