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) 


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…

Northern District Pro Bono Opportunities

Dear Northern District Bar Members, 

The Court currently has three opportunities for attorneys to volunteer as pro bono counsel for trial ready cases. Please refer to L.R. 83.3 regarding the establishment of the Pro Bono Panel of the Northern District of New York. The following cases are currently awaiting pro bono counsel:

1. 9:15-cv-771 (GTS/TWD) Lewis v. Cowan et al (Syracuse Trial) 

2. 9:15-cv-317 (GTS/TWD) Peele v. Donah et al (Syracuse Trial)

3. 9:06-cv-1308 (FJS/DEP) Kotler v. Jubert et al (Syracuse Trial) 

*Stand-by Counsel only. Trial is set for 10/19/2016

Please remember that pursuant to Local Rule 83.3 (g) attorneys who accept a pro bono appointment may seek reimbursement for expenses incident to representation of indigent clients by application to the Court. Reimbursement or advances shall be permitted to the extent possible in light of available resources and, absent extraordinary circumstances, shall not exceed $2,000.

If any firms or counsel are interested in one of the above opportunities, please contact Nicole Eallonardo in the Clerk’s Office, at for further information. Accepting one of the above assignments will fulfill the requirement under Local Rule 83.3. Thank you for your attention to this matter. 

Thank you,

Lawrence K. Baerman, Clerk of Court

Louisiana Judges Issue Harsher Sentences When The LSU Football Team Loses – The Atlantic

Kids who are sentenced by college-football-loving judges who are disappointed after unexpected team losses are finding themselves behind bars for longer than kids who are sentenced after wins or predicted losses.

That’s the gist of a new working paper by a pair of economists at Louisiana State University. It sounds almost comical, like an Onion headline, at first glance: “Judge Sentences Teen to Two Years After Louisiana Tigers Fall to Wisconsin Badgers.” But, insists Naci Mocan, an economics professor at LSU and a co-author (with a fellow professor, Ozkan Eren) of “Emotional Judges and Unlucky Juveniles,” it’s not far off.


Marc Schindler, the executive director of the Justice Policy Institute and a former public defender in Baltimore, said he found the study fascinating. While he’s not convinced judges will take it to heart, he said defenders might see the study as a tool. If he was defending a kid in Louisiana in the week after a big LSU upset and knew the judge had attended the school, he might say something like, “Now, Your Honor, I know we all had a rough day on Saturday, but we all know we’re not going to let that impact our decision making…” Maybe it would backfire, but maybe it wouldn’t.

Read entire Atlantic Article here…

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Amid Growing Scrutiny of Trust Accounts, Lawyer to Be Sentenced in $12M Scheme |

By Susan Beck

As more eyes focus in on how lawyers use trust accounts to handle client funds, a rare prosecution of a lawyer for improperly filtering large sums through such an account is set to take place today.

A San Diego lawyer is scheduled to be sentenced Tuesday for improperly using IOLTA accounts, which are a special type of lawyer trust account, to illegally transfer money. The government has asserted that Richard Medina Jr. allowed nearly $12 million to be deposited into his IOLTA accounts to help mask the identity of customers in Mexico, the United States, and other countries who were moving money from the U.S. to overseas destinations. Medina pleaded guilty last September to operating an unlicensed money transmitting business and agreed to forfeit $12 million


Read more….

Inside “Making a Murderer” and the Steven Avery Trial – Legal Talk Network


Inside “Making a Murderer” and the Steven Avery Trial

On this special episode of Lawyer 2 Lawyer, host Bob Ambrogi joins Dean Strang, former defense attorney for Steven Avery, and Peter Linton-Smith, a former television news reporter who covered the Avery trials, as they discuss the popular Netflix series, “Making a Murderer.” Dean and Peter offer inside perspectives and get the latest on Steven Avery and his quest for a new trial and justice under a new attorney.

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Over 200,000 Register For VW Class-Action Suit Buyback Plan That Calls for 3 Actions – Torque News

More than 200,000 VW owners have opted for the Dieselgate buyback program, surprising some legal authorities with the speed with which it happened, about a month or a little more.

Although it is the more expensive option, Volkswagen may be happy that more than 200,000 consumers affected by the Dieselgate scandal are opting for the cash buyback and not a fix. The reason is that the automaker may avoid further penalties as each vehicle the carmaker buys back is one more off the road. VW must get 85 percent of the emissions-cheating cars off the road to prevent more penalties.

The settlement VW worked out with consumers and regulators to settle the class-action suit calls for:

  • A cash buyback of affected vehicles
  • Or, $5,100
  • Or, a free fix, if one should be approved and become available

Read more…

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Circuit Reverses $655M Award Against PLO for Terror Attacks | New York Law Journal

A $655 million award against the Palestine Liberation Organization and the Palestinian Authority for attacks that killed or wounded members of 11 American families in Israel has been thrown out by the U.S. Court of Appeals for the Second Circuit. 


Judges Pierre Leval and Christopher Droney and Southern District Judge John Koeltl, sitting by designation, said Daniels erred in finding personal jurisdiction in Sokolow v. Palestine Liberation Organization, 15-3135.



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