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Understanding Business Records Requirements in Foreclosure Cases
When mortgage servicers attempt to prove standing in foreclosure actions, they must navigate strict evidentiary requirements under New York’s business records exception to the hearsay rule. A recent Second Department decision illustrates the challenges that arise when an affiant from one company tries to authenticate records from a predecessor entity without demonstrating proper familiarity with that entity’s record-keeping practices.
The business records exception under CPLR 4518 allows certain documents to be admitted into evidence despite being hearsay, but only when specific foundational requirements are met. This case highlights a critical gap that frequently undermines foreclosure plaintiffs’ attempts to establish standing through successor servicer testimony.
Jason Tenenbaum’s Analysis:
US Bank N.A. v Ballin, 2018 NY Slip Op 01212 (2d Dept 2018)
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“Thrasher averred, in relevant part, that her affidavit was based upon her review of Ocwen’s business records, and that upon review of such records, the note was physically transferred to the plaintiff on December 1, 2006. The plaintiff failed to demonstrate that the records relied upon by Thrasher were admissible under the business records exception to the hearsay rule (see CPLR 4518) because Thrasher, an employee of Ocwen, did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures (see Bank of N.Y. v Willis, 150 AD3d 652, 653; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849, 852; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652). Thus, the plaintiff failed to establish, prima facie, that it had standing to commence the action.”
The question as you could imagine is what is sufficient to prove sufficiency of a prior entities practices.
Key Takeaway
Courts require more than mere access to predecessor records. An affiant must demonstrate actual familiarity with the record-keeping practices and procedures of the entity that originally created the business records. This foundational requirement remains a significant hurdle for mortgage servicers seeking to establish standing through successor testimony, as simple review of transferred records without knowledge of their creation process proves insufficient under CPLR 4518.
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Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Business Records & Documentary Evidence in New York
The business records exception to the hearsay rule is one of the most important evidentiary foundations in New York litigation. Establishing that a document qualifies as a business record under CPLR 4518 requires showing it was made in the regular course of business, at or near the time of the event, and that it was the regular practice to create such records. In no-fault and personal injury cases, disputes over business records arise constantly — from claim files and medical records to billing documents and mailing logs.
80 published articles in Business records
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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