You are here: / / THE BANK DID NOT SUPPLY THE DOCUMENTS RELIED ON TO SHOW DEFENDANT’S...
, ,

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.

 

You might also like
A COUNTY SHERIFF WAS INVOLVED IN THE TRAFFIC ACCIDENT FOR WHICH PETITIONER SOUGHT LEAVE TO FILE A LATE NOTICE OF CLAIM; BECAUSE THE COUNTY WAS AWARE OF THE POTENTIAL ACTION FROM THE OUTSET, LEAVE WAS PROPERLY GRANTED (SECOND DEPT).
DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT.
IN A HYBRID ACTION SEEKING AN ANNULMENT PURSUANT TO ARTICLE 78 AND A DECLARATORY JUDGMENT (AND DAMAGES), THE BURDENS TO DEMONSTRATE STANDING ARE DIFFERENT; IN AN ARTICLE 78 THE PETITIONER MUST AFFIRMATIVELY DEMONSTRATE STANDING; AND IN A DECLARTORY-JUDGMENT/DAMAGES ACTION, THE RESPONDENT (DEFENDANT) MUST DEMONSTRATE PETITIONER DOES NOT HAVE STANDING AS A MATTER OF LAW TO WARRANT SUMMARY JUDGMENT (SECOND DEPT).
Marching Band Director Did Not Assume the Risk of Injury Caused by a Defect in the Roadway
DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF A PROTRUDING NAIL IN A BASEMENT STAIRWAY WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT DID NOT PRESENT EVIDENCE DEMONSTRATING WHEN THE STAIRWAY WAS LAST CLEANED OR INSPECTED (SECOND DEPT).
THERE WAS A QUESTION OF FACT WHETHER THE VEHICLE WHICH STRUCK PETITIONER WAS THE VEHICLE INSURED BY GEICO; ARBITRATION OF PETITIONER’S DEMAND FOR UNINSURED MOTORIST BENEFITS FROM ALLSTATE, HER INSURER, SHOULD HAVE BEEN STAYED AND A FRAMED ISSUE HEARING SHOULD HAVE BEEN ORDERED (SECOND DEPT).
THE CHILDREN DO NOT HAVE STANDING TO PARTICIPATE IN LITIGATION REGARDING THEIR PARENTS’ PRENUPTIAL AGREEMENT; THEREFORE THE ATTORNEY FOR THE CHILD DID NOT HAVE THE AUTHORITY TO MAKE A MOTION CONCERNING THE PRENUPTIAL AGREEMENT (SECOND DEPT).
MOTHER ATTACKED HER SISTER WITH A KNIFE WHEN MOTHER’S CHILDREN WERE IN THE HOME, FAMILY COURT SHOULD NOT HAVE REVERSED THE NEGLECT FINDING BY THE ADMINISTRATION FOR CHILDREN’S SERVICES, THERE WAS NO NEED TO DEMONSTRATE THE CHILDREN WITNESSED OR WERE AWARE OF THE ATTACK (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

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