FORGED SIGNATURE ON MORTGAGE?

U.S. Bank Natl. Assn. v Goldin, 2018 NY Slip Op 02825, Decided on April 25, 2018, Appellate Division, Second Department:

"Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting the note, the mortgage, annexed to which was a certificate of acknowledgment, and an affidavit of merit by a document control officer for the loan servicer, setting forth that the appellant defaulted on the mortgage loan by failing to make the monthly payments due on May 1, 2011, and thereafter. In opposition, however, the appellant raised a triable issue of fact as to the validity of the mortgage produced by the plaintiff and, thus, as to whether the mortgage was enforceable (see Countrywide Home Loans, Inc. v United Gen. Tit. Ins. Co., 109 AD3d 950, 952).

"A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, which presumption . . . can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed'" (ABN AMBRO Mtge. Group, Inc. v Stephens, 91 AD3d 801, 803, quoting Son Fong Lum v Antonelli, 102 AD2d 258, 260-261, affd 64 NY2d 1158; see Kanterakis v Minos Realty I, LLC, 151 AD3d 950, 951; Tribeca Lending Corp. v Huseinovic, 151 AD3d 901, 902; Cunningham v Baldari, 100 AD3d 584, 585). Here, the appellant's submissions were sufficient to raise a triable issue of fact as to whether the mortgage was duly executed. Contrary to the appellant's contention, the unsworn letter from his forensic expert stating that, in her opinion, it was "probable" that the appellant did not sign the mortgage or the mortgage rider, was insufficient to raise a triable issue of fact as to the validity of the signatures (see Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381, 384). However, the appellant also submitted his detailed affidavit, along with other supporting documents, which raised a triable issue of fact as to whether the challenged signatures were forged (see Countrywide Home Loans, Inc. v Gomez, 138 AD3d 670, 671; Estaba v Estaba, 129 AD3d 601, 601; Cooper Capital Group, Ltd. v Densen, 104 AD3d 898, 898; Seaboard Surety v Earthline Corp., 262 AD2d 253, 253; Hoffman v Kraus, 260 AD2d 435, 436).