U.S. Bank National Association v. Tesoriero

Summary

The Appellate Division, Second Department, reversed an order and judgment of foreclosure and sale in favor of U.S. Bank National Association. The court held that the loan servicer's limited power of attorney did not establish its authority to act for the plaintiff and that the plaintiff failed to establish the defendant's default through admissible evidence. The appeal from the earlier order was dismissed as superseded by the subsequent order and judgment.

Holdings

1. The appeal from the June 17, 2019 order had to be dismissed because the right of direct appeal from that order terminated upon entry of the order and judgment of foreclosure and sale; the issues raised from the order were reviewable on the appeal from the final foreclosure judgment.
2. The plaintiff failed to establish that its loan servicer, Nationstar Mortgage, possessed authority to act on the plaintiff's behalf because the submitted limited power of attorney restricted and conditioned that authority by reference to agreements that were not provided.
3. The plaintiff failed to establish the defendant's default because its employee's affidavit did not demonstrate personal knowledge of the default and did not attach the plaintiff's or servicer's business records; any purported reliance on unidentified records rendered the affidavit inadmissible hearsay.
4. Because U.S. Bank failed to establish its prima facie entitlement to judgment as a matter of law, the branches of its motion seeking summary judgment and an order of reference should have been denied without regard to the sufficiency of the defendant's opposition, and the foreclosure judgment should not have been entered.

Questions Presented

1. Whether the appeal from the June 17, 2019 order remained directly appealable after entry of the order and judgment of foreclosure and sale.
2. Whether U.S. Bank established its prima facie entitlement to summary judgment in the mortgage-foreclosure action by demonstrating the servicer's authority, the defendant's default, and admissible proof of the default.
3. Whether the order and judgment of foreclosure and sale could stand when the plaintiff failed to establish prima facie entitlement to summary judgment.

Disposition

reversed_and_remanded