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Adam Leitman Bailey, P.C. Upholds Summary Judgment in Favor of Foreclosing Plaintiff in Defeating Motion for Leave to Reargue

By Jackie Halpern Weinstein


In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its Trustee v. Balash, et al., a highly contested foreclosure proceeding, ALBPC successfully moved for summary judgment and an order of reference on behalf of the foreclosing Plaintiff (“Summary Judgment Motion”).  One of the borrowers, who timely interposed an answer to the action and opposed the Summary Judgment Motion, moved for leave to reargue on the alleged ground that the Court misapprehended the applicable law in holding that the foreclosing Plaintiff established its standing to foreclose.

The subject loan documents were assigned to the foreclosing Plaintiff, prior to commencement of the action, by endorsement in blank on the subject consolidated note, physical delivery of the consolidated note, and by assignment of mortgage.

The pre-action written assignment of mortgage expressly assigned the subject mortgages together with “the note(s) and obligations therein described and the money due and to become due thereon with interest”.

A copy of the consolidated note with endorsement in blank was annexed to the foreclosing Plaintiff’s filed complaint.

In support of the Summary Judgment Motion, ALBPC submitted an affidavit from the servicer of the loan, which confirmed that the foreclosing Plaintiff was in possession of the original consolidated note on the day the action was commenced and, further, provided the exact date of delivery of the original consolidated note to the foreclosing Plaintiff.

In support of the reargument motion, the borrower argued that the servicer affidavit was insufficient to establish the foreclosing Plaintiff’s standing based upon the pre-action physical delivery of the consolidated note because (i) it was not based upon the affiant’s personal knowledge of the facts attested to, and (ii) the affiant did not aver that she physically examined the original consolidated note.  In support of her arguments, the borrower cited to the Court of Appeals’ decision in Aurora Loan Servs., LLC v. Taylor.

In opposition, ALBPC successfully argued and established that: (i) there is no requirement for an affiant to have personal knowledge of facts attested to in an affidavit; (ii) unlike the facts in Taylor, in this case, a copy of the consolidated note with endorsement in blank was annexed to the foreclosing Plaintiff’s filed complaint, which established, prima facie, the foreclosing Plaintiff’s standing as the holder of the consolidated note at the time the action was commenced; and (iii) in addition to establishing its standing as holder of the consolidated note, the foreclosing Plaintiff also established its standing as assignee of the consolidated note at the time the action was commenced through production of the pre-action written assignment of mortgage to it, rendering the borrower’s sole ground for reargument meritless.

Persuaded by ALBPC’s arguments, Judge Rudolph E. Greco, Jr. denied the borrower’s reargument motion in its entirety holding that the borrower failed to meet her burden of establishing that the Court overlooked facts or misapprehended law in reaching its prior decision granting the foreclosing Plaintiff’s Summary Judgment Motion.

Jackie Halpern Weinstein, Esq. and another attorney of the Foreclosure Group at Adam Leitman Bailey, P.C. secured this win for the foreclosing Plaintiff.        

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS