“Banks are disorganized, bank attorneys are reckless, and the trial courts need to do better.” That’s how I interpret the Appellate Court’s decision in Bank of New York Mellon v. Dushaun Gordon.
In the wake of the financial crisis that began in 2008, New York State courts have experienced an unprecedented spike in foreclosure actions. The dramatic increase in foreclosure litigation has revealed many deficiencies in the banks’ record-keeping practices, the inadequacies in the prosecution of the matters, and the trial courts’ continuous misapplication of the most fundamental principles of law.
On March 27, 2019 (exactly one month before my birthday), the Second Judicial Department modified a decision made by the Nassau County Supreme Court with hopes of finally clarifying basic evidentiary law and eliminating many foreclosure disputes that make up the ever-increasing trial courts. In Bank of New York Mellon v. Dushaun Gordon, contrary to the lower court’s findings, the Second Department determined that the bank unequivocally failed to establish the defendant’s default under the loan documents. In other words, the bank couldn’t even prove that borrower/mortgagor stopped repayment on the loan.
Plaintiff’s affiant did not possess personal knowledge of the purported default and failed to make a prima facie showing through admissible business records. Plaintiff’s counsel tried to overcome these deficiencies by inexplicably attaching payment records to the attorney affirmation, which were carelessly considered by the lower court but adamantly rejected by the Appellate Division. Specifically, the Second Department found that “since the plaintiff failed to establish, prima facie, [defendant’s] default in the repayment of the subject loan through the submission of evidence in admissible form, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment….”
Having worked for several bank firms where I represented numerous lenders and loan servicers, I know firsthand that banks have successfully prosecuted foreclosure actions despite blatant deficiencies in the records. While a motion for summary judgment cannot rest on inadmissible evidence, “a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion.” Rosenblatt v St. George Health & Racquetball Assoc.,LLC, 119 A.D.3d 45, 55 (2d Dept. 2014). Accordingly, it is absolutely imperative to contest the admissibility of a bank’s records when applicable. When you’re a party in an action, your claims are only as good as your proof.