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THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE OF DEFENDANTS’ DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate the defendants’ default in this foreclosure action:

“Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form”… . Although Smith [plaintiff’s vice president] averred that she had personal knowledge of the plaintiff’s record-keeping practices and procedures, Smith’s purported knowledge of the alleged default was based upon her review of unidentified business records, which she failed to attach to her affidavit … . Thus, Smith’s assertions regarding the defendants’ alleged default constituted inadmissible hearsay and lacked probative value … . Wells Fargo Bank, N.A. v Gross, 2022 NY Slip Op 00902, Second Dept 2-9-22

 

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