Judges

Attorneys and Parties

Brief Summary

Background

In March 2007, the plaintiff's predecessor commenced a mortgage foreclosure action against Rudolph E. Walker and others concerning Brooklyn property. Walker did not answer the complaint. More than ten years later, the plaintiff moved for leave to enter a default judgment and for an order of reference, which was granted. The plaintiff later moved to confirm the referee's report and obtain a judgment of foreclosure and sale. The referee calculated the amount due as of March 2, 2017, relying on an affidavit from Wells Fargo Bank, N.A. (Wells Fargo), the loan servicer. That affidavit, executed by a Wells Fargo vice president of loan documentation, stated the amount due but did not attach the underlying business records.

Lower Court Decision

The Supreme Court accepted the referee's report, granted the plaintiff's motion, and entered an order and judgment of foreclosure and sale directing the property to be sold.

Appellate Division Reversal

The Appellate Division held that a referee's report may be confirmed only when the findings are substantially supported by the record. Here, the amount due was derived from unidentified and unproduced business records referenced by the loan servicer's affiant. Because computations based on such unproduced records are inadmissible hearsay and lack probative value, the referee's findings were not adequately supported. The court therefore reversed and denied the plaintiff's motion.

Legal Significance

This decision reinforces that, in New York mortgage foreclosure proceedings, a plaintiff seeking confirmation of a referee's report must submit admissible evidentiary proof of the amounts due. An affidavit summarizing loan figures is not enough when the underlying business records are not produced. Even where a defendant defaulted, the plaintiff must still provide competent evidence to support the referee's calculations before obtaining a judgment of foreclosure and sale.