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THE CALCULATIONS IN THE REFEREE’S REPORT WERE NOT SUPPORTED BY THE RELEVANT BUSINESS RECORDS; THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the calculations in the referee’s report were not supported by the relevant business records and the report, therefore, should not have been confirmed:

… [T]he affidavit of Tiffany Bluford, an employee of the plaintiff’s servicing agent, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, “constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records [she] purportedly relied upon in making [her] calculations” … . Moreover, the affidavit of Andrea Kruse, another employee of the plaintiff’s servicing agent, did not contain any averment as to the amount due and owing under the subject mortgage loan. Thus, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . HSBC Bank USA, N.A. v Delgado, 2022 NY Slip Op 07223, Second Dept 12-21-22

Similar issue and result in Wilmington Sav. Fund Socy., FSB v Helal, 2022 NY Slip Op 07259, Second Dept 12-21-22

Practice Point: In a foreclosure action, if the calculations in the referee’s report are not supported by the submission of the relevant business records, the report is based on hearsay and should not be confirmed.

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