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THE BANK DID NOT SUPPLY THE DOCUMENTS RELIED ON TO SHOW DEFENDANT’S DEFAULT AND DID NOT LAY A PROPER FOUNDATION FOR THE DOCUMENTS RELIED ON TO SHOW COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bank did not attach the business records relied on to prove defendant’s default and did not lay a proper foundation for the records purporting to show compliance with the mailing requirements of RPAPL 1304. Therefore the bank’s motion for summary judgment should not have been granted:

The plaintiff failed to demonstrate, prima facie, the defendant’s default in payment under the note. In her affidavit, Wallace [employee of the loan servicer] stated that the defendant failed to make certain payments due under the terms of the note and mortgage, but she failed to identify the records that she relied upon and did not attach those records to her affidavit … .

… The plaintiff relied upon Wallace’s affidavit, in which she averred that the RPAPL 1304 notice was sent to the defendant by certified and first-class mail. Although Wallace averred that she had personal knowledge of [the loan servicer’s] record-keeping practices and procedures, the business records she relied upon and attached to the affidavit were created by other entities. Wallace did not aver that she had personal knowledge of those entities’ business practices and procedures, or otherwise provide a proper foundation for the admission of those records … . U.S. Bank N.A. v Zakarin, 2022 NY Slip Op 05229, Second Dept 9-21-22

Practice Point: To prove a defendant’s default in a foreclosure action, the documents relied upon must be attached to the papers.

Practice Point: A proper foundation must be laid for documents relied upon to prove compliance with the mailing requirements of RPAPL 1304 in a foreclosure actions. Here the documents were not created by the affiant.

 

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PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE AND WAS NOT SUPPORTED BY... AN AFFIDAVIT WITHOUT THE RELEVANT BUSINESS RECORDS ATTACHED DID NOT DEMONSTRATE...