Summary
The Appellate Division, First Department unanimously affirmed a foreclosure judgment in favor of Bank of America. The court held that the Referee's report was properly confirmed based on business records and that the absence of a CPLR 4313 hearing did not prejudice the defendant. The court declined to review the defendant's challenge to service of the RPAPL 1304 notice and held on the merits that the loan was not a statutory home loan because the condominium was not subject to the required primary-residence occupancy.
Topics
Practice areas
Questions Presented
- Whether Supreme Court properly confirmed the Referee's report concerning the amount due on the mortgage.
- Whether plaintiff's supporting documents and calculations were properly authenticated and submitted as business records.
- Whether the failure to provide notice of a hearing under CPLR 4313 required reversal or otherwise prejudiced defendant.
- Whether defendant's challenge to service of the 90-day notice under RPAPL 1304 was preserved for appellate review.
- Whether the loan qualified as a statutory home loan under RPAPL 1304(6)(a)(1)(iii).
Holdings
- Supreme Court properly confirmed the Referee's report because its findings concerning the amount due were substantially supported by the record.
- The failure to notice a hearing under CPLR 4313 was immaterial because defendant was not prejudiced and had an opportunity to contest the Referee's report.
- The court declined to review defendant's challenge to proper service of the RPAPL 1304 90-day notice because defendant abandoned his appeal from the prior summary-judgment order and failed to raise the issue in opposition to the motion for a judgment of foreclosure and sale.
- The loan was not a home loan under RPAPL 1304(6)(a)(1)(iii).
Key quotations
“The failure to notice a hearing under CPLR 4313 is immaterial.” ([*1])
“The loan documents demonstrate that the loan in question was not a "home loan" under the statutory definition (RPAPL 1304[6][a][1][iii]).” ([*2])
Factual background
The foreclosure concerned a condominium unit securing a mortgage loan. Defendant admitted that he did not live in the unit when he signed the original mortgage, the original 1-4 Family Rider deleted the borrower-occupancy requirement, and the modified mortgage contained a second-home rider precluding occupancy as a primary residence. Plaintiff's affiant supported the amount due with business records, including a payment history after default, and defendant had an opportunity to present evidence challenging the calculations but did not do so.
Procedural history
Supreme Court, New York County, granted plaintiff's motion for a judgment of foreclosure and sale and confirmed the Referee's report concerning the amount due on the mortgage. The court later entered judgment for plaintiff. The Appellate Division deemed the appeal to be from that judgment and unanimously affirmed it with costs.