Self Serving Affidavits Insufficient to Calculate Debt Owed in Foreclosure Proceeding
This week we wanted to bring your attention to an interesting decision out of the Appellate Division, 2nd Department, which vacated a lower Court’s Order granting Plaintiff/Lender a Judgment of Foreclosure and Sale on a mortgage foreclosure proceeding. The Court based its decision, in part, on the fact that the “affidavit of the plaintiff's servicing agent, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, constituted inadmissible hearsay and lacked probative value.”
The relevant facts of, as well as a link to, the case are set forth below.
In August 2015, the Plaintiff commenced this action against the Defendant, Daniel L. Sharon (hereinafter the defendant), among others, to foreclose the subject mortgage, alleging that the Defendant defaulted on mortgage payments due July 1, 2010, and thereafter. The Appellate Division, in reversing entry of a judgment of foreclosure and sale by the Supreme Court, Nassau County, held, in part that “the affiant did not produce any of the business records he purportedly relied upon in making his calculations’ [citations omitted] …Thus, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record [citations omitted].”
See HSBC Bank USA, N.A. v. Sharon, 2022 NY Slip Op 00852, decided February 9, 2022 reported at https://www.nycourts.gov/reporter/3dseries/2022/2022_00852.htm
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