Summary
The Appellate Division, First Department, reversed an order denying Wilmington Savings Fund Society's motion to confirm a referee's report and enter a judgment of foreclosure and sale. The court held that the loan servicer's affidavit and records sufficiently established the borrower's default, unpaid principal balance, and total amount owed.
Topics
Practice areas
Questions Presented
- Whether the Referee's report was sufficiently supported by admissible evidence of the borrower's payment history, default, and unpaid principal balance.
- Whether the loan servicer's calculations of the total amount owed were sufficiently supported to permit entry of a judgment of foreclosure and sale.
Holdings
- The Referee's report was substantially supported by the affidavit of plaintiff's corporate loan-servicing counsel, which established the borrower's default and unpaid principal balance.
- The loan servicer's uncontested calculations of the total amount owed were sufficiently supported by the submitted records, including calculations of accrued interest under the note's fixed interest rate.
Key quotations
“records received from other entities "may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business"” ([*1])
Factual background
The borrower defaulted on the loan payment due October 1, 2008. Plaintiff's corporate loan-servicing counsel submitted an affidavit detailing the borrower's complete payment history and establishing the unpaid principal balance. The loan servicer also submitted uncontested calculations of the total amount owed, including principal and accrued interest calculated under the note's fixed interest rate, supported by business records.
Procedural history
Supreme Court, Bronx County, denied Wilmington's motion to confirm the Referee's report and for a judgment of foreclosure and sale. The Appellate Division, First Department, unanimously reversed, granted the motion, confirmed the report, and directed the Clerk to enter a judgment of foreclosure and sale for plaintiff.
Remand instructions
The motion was granted, the Referee's report was confirmed, and the Clerk was directed to enter a judgment of foreclosure and sale in favor of plaintiff.