MORTGAGE FORECLOSURE- SUMMARY JUDGMENT DENIED

Reviewing this case on e courts, this foreclosure has been through several litigated motions. And even while the appeal of the 2017 decision was pending, the bank, in August 2019, applied for an order of reference and the homeowner cross-moved for a stay pending the appeal. Both motions were eventually withdrawn.

Wells Fargo Bank, N.A. v Bakth, 2020 NY Slip Op 01382, Decided on February 26, 2020, Appellate Division, Second Department:

"On its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Achwad Bakth (hereinafter the defendant) and for an order of reference, the plaintiff, to establish its standing to commence this mortgage foreclosure action, submitted an affirmation of Amber A. Jurek, a lawyer with Gross Polowy, LLC (hereinafter Gross Polowy), the plaintiff's counsel. Jurek stated that she was familiar with Gross Polowy's records and record-keeping practices. Jurek stated that on January 28, 2015, Gross Polowy received the plaintiff's file, which included the original endorsed note. Gross Polowy commenced this action on the plaintiff's behalf on February 26, 2015. According to Jurek, "[o]n that date, Gross Polowy, on behalf of Plaintiff, remained in physical possession of the collateral file, including the original endorsed Note dated March 20, 2012." The plaintiff also submitted the note, which bore an undated endorsement to the plaintiff. However, Jurek did not set forth any facts based on her personal knowledge to support her statement that the note in the plaintiff's file was the original endorsed note. Further, the plaintiff failed to attach the business records upon which Jurek relied in her affirmation, and since Jurek did not state that she personally witnessed Gross Polowy receive the plaintiff's file, her statement is inadmissible hearsay (see Federal Natl. Mtge. Assn. v Brottman, 173 AD3d 1139; cf. Wells Fargo Bank, N.A. v Gonzalez, 174 AD3d 555; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 206-207).

The plaintiff also submitted an affidavit of April H. Hatfield, vice president of loan documentation for the plaintiff. Hatfield stated that she was familiar with the plaintiff's records and record-keeping practices. Although Hatfield attached the records upon which she relied, she did not [*2]state that the plaintiff had possession of the endorsed note at the time the action was commenced. Rather, she relied on Jurek's affidavit for that fact. Accordingly, Hatfield's affidavit was also insufficient to establish the plaintiff's standing.

Finally, the plaintiff did not attach a copy of the note to the complaint when commencing this action. Therefore, the plaintiff failed to establish, prima facie, that it had standing to commence this action, and those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference should have been denied."