The First Department of New York’s Appellate Division recently held that a trial court should have granted a lender summary judgment in an action. See Bank of Am., Nat. Ass’n v. Brannon, 63 N.Y.S.3d 352 (N.Y. App. Div. 2017). In the case, the defendant-borrower defaulted on her loan in 2007, and plaintiff commenced a foreclosure action. In 2008, the trial court granted plaintiff’s motion for summary judgment and in 2009, plaintiff assigned the mortgage to IFS Properties, LLC (“IFS”). In 2014, the property still had not been sold, and plaintiff filed a motion to vacate the prior summary judgment order because (i) the affidavits submitted with the original motion may not have been correctly notarized and (ii) plaintiff’s new counsel could not comply with Administrative Order 431/11, which required counsel to confirm the accuracy of plaintiff’s prior affidavit of merit with the affiant. Plaintiff simultaneously filed a new motion for summary judgment based upon a new affidavit of merit from IFS’s managing member, which counsel confirmed was accurate. The trial court vacated the order but denied the new summary judgment motion, holding that the original affidavits “were not mistakes, omissions or mere irregularities that could be cured by a new affidavit.” Plaintiff filed two more motions for summary judgment, both of which were denied. In denying the third motion, the trial court “stat[ed] that it did not believe that plaintiff understood that an action initiated on the basis of a false affidavit suffers from a fatal defect, which cannot be overcome with a subsequent affidavit.” The trial court also held that the new affidavit was further defective because it did not indicate the state and county of notarization. On appeal, the First Department reversed.
First, the Court held that the errors in the original affidavits were not fatal to the action as a whole, but only to that particular motion. Thus, the filing of a new affidavit of merit in compliance with Administrative Order 431/11 cured the issue. Second, the Court found that the failure to include the state and county of notarization can be disregarded because “the court can disregard a defect in the Uniform Certificate of Acknowledgment unless a defendant has demonstrated that a substantial right of hers has been prejudiced,” which was not the case here. Finally, the Court found that the new affidavit of merit was not deficient even though the affiant was unfamiliar with the original lender’s files. “[I]n seeking to enforce a loan, an assignee of an original lender or intermediary predecessor may use an original loan file prepared by its assignor, when it relies upon those records in the regular course of its business. . . . [The affiant here] indicated that he was personally familiar with the recordkeeping systems of IFS and plaintiff and the loan servicer it used, that the records he relied on were made in the regular course of business and that he personally reviewed them on January 31, 2015.” Thus, summary judgment should have been granted.