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A business record can be anythingNovember 4, 2017

Here is an irony. Now that the notion of a business record plays a minimal role in no-fault practice, where do we now see intense skirmishes over this item?  Mortgage Foreclosure actions and credit card collections.  Oh and here is more irony for those who have been in the no-fault game for too long.  Which Department requires a more particularized affidavit to satisfy 4518(a), and which requires watered down, conclusory assertions?    the answer is below, but you should know it already.

Bank of Am., N.A. v Brannon, 2017 NY Slip Op 07578 (1st Dept. 2017)

(1) “Furthermore, under the circumstances before us, the flaws in the notarization of Mattera’s affidavit are not fatal to plaintiff’s summary judgment motion (see Matter of Cubisino v Cohen, 47 NYS2d 952, 953-954 [Sup Ct, NY County 1944], affd 267 App Div 891 [1st Dept 1944]; Fisher v Bloomberg, 74 App Div 368, 369 [1st Dept 1902]; see also Sirico v F.G.G. Prods., Inc., 71 AD3d 429, 434 [1st Dept 2010]; Todd v Green, 122 AD3d 831, 832 [2d Dept 2014]). Pursuant to CPLR 2101(f) 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. As no prejudice has been shown by defendant, the alleged defect should have been disregarded”

This is a bonus citation to those who enjoy arguing that irregularities in the notarization voids an affidavit.  It is not related to the substance of the post.

(2) “Furthermore, CLPR 4518(a) does not require a person to have personal knowledge of each of the facts asserted in the affidavit of merit put before the court as evidence of a defendant’s default in payment (see Citigroup v Kopelowitz, 147 AD3d 1014, 1015 [2d Dept 2017] [“There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon”]; Citibank, NA v Abrams, 144 AD3d 1212 [3d Dept 2016]). Thus, in 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 (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418 [1st Dept 2012]; see also State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 [3d Dept 2012], lv denied 20 NY3d 858 [2013] [records admissible “if the recipient can establish personal knowledge of the maker’s business practices and procedures, or that the records provided by the maker were incorporated into the recipient’s own records or routinely relied upon by the recipient in its business”]).”

(2a)

“Here, Mattera, a representative of IFS, which has held the note and mortgage since November 2009, satisfied these standards, stating that

“I make this affidavit with personal knowledge of the facts and circumstances herein which are derived from personal knowledge and/or an independent examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of Plaintiff to be an accurate and fair representation of the occurrences with which the record purports to represent as well as business records relative to the within litigation. I am familiar with the record keeping systems that Plaintiff and/or its loan servicer uses to record and create information related to the residential mortgage loans that it services, including the processes by which Plaintiff and/or its loan servicer obtains the loan information in those systems. While many of those processes are automated, where the employees of the Plaintiff and/or its servicer manually enter data relating to loans on those systems, they have personal knowledge of that information and enter it into the system at or near the time they acquired that knowledge. The records relied upon are made in the regular course of business made at or about the time the event is being recorded, systematically made for the conduct of business and are relied upon as the accurate routine reflections of the day-to-day regularly conducted business activity and so they may be relied upon as being truthful and accurate. In connection with making this affidavit, I have personally examined these business records reflecting data and information as of January 31, 2015. . . .

* * *

“I have also reviewed Plaintiffs books and records, and the payments of principal and interest made by Defendant(s) to Plaintiff. Any allegation of either full or timely payment after default is simply not substantiated by these records. All notices of default as required in the Note have been sent as prescribed in the Mortgage . . . . All time frames set forth in the notice and /or notices, as required by the Mortgage have elapsed and the Defendant(s) have not taken the necessary action to correct the default and or defaults as specified herein and in the Complaint. . . .

* * *

“The simple uncontroverted fact is that Defendant, SARAH BRANNON, was loaned and did receive $360,000.00, as is confirmed by the Mortgage and Note. Defendant did not uphold this obligation, to the detriment of Plaintiff. Defendant breached his/her obligations under the Mortgage by failing to successfully tender funds for the August 1, 2007 payment and all successive payments thereafter.”

(2b) “While the dissent finds the affidavit deficient because Mattera did not state that he was familiar with the records of GE, the Default Notice was sent by Litton, plaintiff’s agent, and Mattera stated that he was familiar with the recordkeeping systems that plaintiff and/or its loan servicer used. He also stated that he personally reviewed plaintiff’s books and records, and the payments made by defendant”

What was missing from what was a 2-3 page affidavit?  How was the affiant familiar with the antecedent entity’s record keeping?  The dissent harped on this issue and, under a technical reading of 4518(a), the dissent is correct.  The First Department accepts the legal fiction that a current entity can have personal knowledge about a prior entity and, therefore, establish the requisite personal knowledge to substantiate a business record.  But in my mind, if you are going to head down this path, take ownership of it.  Do not hide behind cases that are not directly on point.

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