Matter of US Bank N.A. v. Merino

Summary

The Appellate Division, First Department unanimously affirmed an order denying without prejudice US Bank National Association's motion to confirm a referee's report and for a judgment of foreclosure and sale. The court held that the evidentiary foundation was insufficient to establish the amounts due because the loan-servicing affidavit did not identify the creator of specific records or sufficiently identify the loan. The court also upheld tolling of mortgage interest during specified periods because unexplained referee-related delays prejudiced the defendant.

Holdings

1. A referee's report calculating amounts due on a mortgage loan may properly be rejected when the supporting affidavit does not establish who created the specific records relied upon, particularly where the records do not sufficiently identify their creator or the loan to which they relate.
2. A court may exercise its equitable power under CPLR 5001(a) to toll mortgage interest when unexplained or plaintiff-caused delays in the foreclosure-referee process substantially prejudice the defendant.

Questions Presented

1. Whether Supreme Court properly declined to confirm the referee's report when the supporting loan records lacked an adequate foundation and sufficient identification.
2. Whether Supreme Court properly exercised its equitable discretion under CPLR 5001(a) to toll mortgage interest during periods of plaintiff-caused or unexplained referee-related delay that substantially prejudiced the defendant.

Disposition

affirmed