You are here: / / BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS...
,

BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it had standing to foreclose. Therefore the bank’s motion for summary judgment should not have been granted. Among other failings, the requirements of the business records exception to the hearsay rule were not met:

​

Here, the plaintiff produced the mortgage, the unpaid note, and evidence of the appellant’s default. However, the plaintiff failed, prima facie, to establish its standing. Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action … . The plaintiff attempted to establish its standing through the affidavit of Myron D. Keyes, Vice President Loan Documentation of Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the servicing agent to the plaintiff. However, Keyes averred only that the plaintiff was “in possession of” the note. The plaintiff subsequently submitted a further affidavit from April J. Linn, another Vice President Loan Documentation of Wells Fargo. Unlike Keyes, Linn submitted documentary evidence showing that Wells Fargo was appointed the plaintiff’s servicing agent on February 21, 2014. Linn further averred, based on her familiarity with the business records maintained by Wells Fargo, that the plaintiff “had possession of the [note] as of November 28, 2006.” However, Linn’s affidavit failed, among other things, to explain how a review of the business records of a servicing agent appointed in 2014 could prove that the plaintiff had obtained physical possession of the note more than seven years earlier. In sum, Keyes’ affidavit, as well as Linn’s subsequent affidavit, provided neither sufficient factual details to establish the physical delivery of the note to the plaintiff prior to the commencement of this action … , nor the foundational knowledge required to admit such factual details under the business records exception to the hearsay rule … . U.S. Bank N.A. v Brody, 2017 NY Slip Op 08873, Second Dept 12-20-17

FORECLOSURE (STANDING, EVIDENCE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STANDING (FORECLOSURE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS EXCEPTION,  BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BUSINESS RECORDS (HEARSAY EXCEPTION, FORECLOSURE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

You might also like
Under the Facts, Family Court Should Not Have Terminated Father’s Parental Rights—No Showing that Termination Would Increase Likelihood of Adoption
PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT).
Hearsay, Although Admissible, Will Not Alone Raise a Triable Issue of Fact/A “Contractor” (Within the Meaning of Labor Law 240 (1)) Need Only Have the Authority to Control the Work—It Need Not Actually Exercise that Authority
THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT).
Extent of Court Review of Town Board’s Assessment of an Environmental Impact Statement Under the State Environmental Quality Review Act (SEQRA) Explained
LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTIONED.
Village’s Actual Notice of a Sidewalk Defect Does Not Override Written Notice Requirement
IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED... THREE-FOOT HEIGHT DIFFERENTIAL IN ROOF LEVELS WAS NOT THE TYPE OF ELEVATION...