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PLAINTIFF BANK FAILED INCLUDE REFERENCED DOCUMENTS WITH ITS MOTION PAPERS AND THEREBY DID NOT DEMONSTRATE DEFENDANTS’ DEFAULT OR PLAINTIFF’S STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not establish defendants’ default or plaintiff’s standing in this foreclosure action:

… [T]he plaintiff submitted … the affidavit of Christy Vieau, a document execution associate for the plaintiff, who, based upon her review of business records, attested to [defendant’s]  default in payment. While Vieau made the requisite showing that she was familiar with the plaintiff’s record-keeping practices and procedures (see CPLR 4518[a]), she did not identify the records she relied upon, and did not attach them to her affidavit … . Thus, her assertions as to the contents of these records were inadmissible … .

The plaintiff also failed to establish, prima facie, its standing to commence the action. … “A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint” … . A plaintiff may establish its standing by “demonstrating that the note was in its possession prior to the commencement of the action, as evidenced by its attachment of the endorsed note to the summons and complaint at the time the action was commenced” … . Here, the plaintiff contends that it established standing by annexing a copy of the original note, endorsed to it, to the complaint. However, there is no copy of an endorsed note attached to the complaint. Rather, the copy of the note attached to the complaint states that it is an electronic document with an electronic transfer history, a fact wholly unaddressed by the plaintiff … . Nationstar Mtge., LLC v Koznitz I, LLC, 2022 NY Slip Op 04813, Second Dept 8-3-22

Practice Point: Many foreclosure summary judgment awards are reversed because the bank did not attached the documents referenced in its papers. Here the documents supporting defendants’ alleged default and the bank’s standing were missing and summary judgment was reversed.

 

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