Another Brooklyn Trial Judge & His Aversion To Sloppy Paperwork From Foreclosing Mortgage Lenders

In a recent article in the National Law Journal, Brooklyn Supreme Court Justice Jack Battaglia, in connection with his approach to the apparent sloppy paperwork being filed by foreclosing lenders and their attorneys (and not unlike the approach taken by his colleague on the Brooklyn bench, Justice Arthur Schack), was described as expressing concerns over shortcuts being taken by them in their filings with the court. A review of three of his cases in which he denied foreclosure (with leave to renew in conformity with his decision) reveals a number of the problems Justice Battaglia found and that is apparently the cause for his concern:

1. resorting to the improper use of "nail & mail" method of service of process without first exercising due diligence in determining Defendants' whereabouts; no indication that the process server made any “effort to determine defendants' business address in order to attempt personal service there at pursuant to CPLR 308(2) before resorting to ‘nail and mail’ service - mortgagee would be expected to have a business address for its mortgagor;
2. Affirmation of Merit and Amount Due was executed and notarized in outside New York State and not accompanied by a certificate of conformity;
3. the submission to the court included numerous documents that purportedly support the relief sought, but many of the documents are not identified by anyone with personal knowledge, and are not authenticated or otherwise rendered admissible as evidence - they are not incorporated in any affidavit or affirmation;
4. no proof of service of the notice of default;
5. non-military affidavits were based upon information obtained from an underage person,
6. affidavit executed by a person who is not an officer or employee of either Plaintiff or the original mortgagee, and who was, therefore, not qualified to testify as to the material facts upon which the action must proceed, particularly since the assignment purportedly giving
   Plaintiff ownership of the note and mortgage was not executed until after commencement of the action;
7. court noted that a Limited Power of Attorney held by the alleged plaintiff did not confer testimonial competence;
8. no explanation for attempted service of Defendants at one location when the default letter was addressed to a different location,
9. notice of default from company who is neither the lender or mortgagee;
10. notice of default failed to identify the lender, the date of the note and mortgage, or even the property;
11. non-military affidavit executed as part of the affidavit of service of the summons and complaint was premature;
12. no evidence of compliance with the additional-mailing requirement of CPLR 3215(g)(3)(i);
13. in one case, the assignor under the Assignment of Mortgage was Mortgage Electronic Registration Systems, Inc., but there is no evidence of the assignor's ownership of the
    note and mortgage, or its right or power to make the assignment;
14. Affidavit of Merit made by an “attorney in fact” who does not assert personal knowledge or facts from which personal knowledge might be inferred.

For more on the three cases, see:

1. New Century Mortgage Corporation v Trench, 03/28/2007, 2007 NYSlipOp 30653(U);
2. US Bank National Association v Lockridge, 11/27/2007, 2007 NYSlipOp 33886(U);
3. Wall Street Mortgage v Lorence, 03/19/2007, 2007 NYSlipOp 30224(U).

For other posts that reference the failure of some mortgage lenders and their attorneys to file the required loan documents when starting foreclosures, Go Here, Go Here, Go Here, and Go Here. missing mortgage foreclosure docs gamma