Decision of Interest – Mortgage Foreclosure – 2nd Dept reverses SJ for bank, business records inadmissible

HSBC Mtge. Servs., Inc. v Royal (2016 NY Slip Op 05973) 

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The plaintiff failed to demonstrate the admissibility of the records relied upon by Roesner under the business records exception to the hearsay rule (see CPLR 4518[a]), and, thus, failed to establish the appellant’s default in payment under the note. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (Citibank, N.A. v Cabrera, 130 AD3d 861, 861; see Aurora Loan Servs., LLC v Mercius, 138 AD3d 650). Roesner, who was employed by the loan servicer to U.S. Bank, did not allege that he was personally familiar with the plaintiff’s record keeping practices and procedures. Thus, Roesner failed to lay a proper foundation for the admission of records concerning the appellant’s payment history (see Citibank, N.A. v Cabrera, 130 AD3d at 861; JP Morgan Chase Bank, N.A. v RADS Group, Inc., 88 AD3d 766, 767), and his assertions based on these records were inadmissible (see US Bank N.A. v Madero, 125 AD3d at 758). Inasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Aurora Loan Servs., LLC v Mercius, 138 AD3d 650).

Read full text of decision here…

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