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THE ACCOMPANYING AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE DOCUMENTS RELIED UPON BY THE REFEREE IN THIS FORECLOSURE ACTION; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department determined the referee’s report in this foreclosure action should not have been confirmed because a proper foundation for the admissibility of the records relied upon by the referee was not provided by the accompanying affidavit:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record and the referee has clearly defined the issues and resolved matters of credibility” … . Here, in computing the amount due on the mortgage loan, the referee relied upon the affidavit of Frank Rosas, a vice president of Nationstar Mortgage, LLC (hereinafter Nationstar), the servicer of the mortgage loan. Rosas stated in his affidavit that Nationstar’s records pertaining to the mortgage loan included records of PHH Mortgage, a prior servicer. However, Rosas did not state when Nationstar began servicing the loan, did not state that “[he] was personally familiar with the record-keeping practices and procedures” of PHH Mortgage … , and did not “establish that the records provided by [PHH Mortgage] were incorporated into [Nationstar’s] own records and routinely relied upon by [Nationstar] in its own business” … . Thus, Rosas’s affidavit failed to satisfy the admissibility requirements of CPLR 4518(a) … . HSBC Bank USA, N.A. v Coxall, 2025 NY Slip Op 03557, Second Dept 6-11-25

Practice Point: An affiant’s failure to lay a proper foundation for the admissibility of business records in a foreclosure action results in reversal.

 

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