APPELLATE DECISIONS FROM THE SECOND DEPARTMENT

The attorneys at Maggio & Meyer recognize that appeals are critically important phases in the event a court decides against our clients. As a result, our firm devotes extraordinary resources to appeal strategies, briefings, and oral presentations.

Our firm’s notable achievements in Appeals Advocacy include:

HSBC Bank v. “Sawh”:

Lower Court granted Plaintiff Summary Judgment and Judgment of Foreclosure and Sale. Both Orders of the lower Court were appealed. The Appellate Court reversed finding that Sawh’s application was correct in that the Plaintiff had failed to submit sufficient evidence to establish strict compliance with RPAPL 1304.

Mastr Adjustable Rage Mortgages Trust 2007-1, etc. v. “Joseph”:

Appeal of the lower Court’s finding that RPAPL 1304 compliance was inapplicable where a borrower had previously filed bankruptcy. Appellate Court agreed with “Joseph” in that only the 90-day waiting period was inapplicable, but a pre-foreclosure notice must still be given. Appellate Court further reversed lower Court’s denial of Defendant homeowners application and granted defendant homeowner Summary Judgment and dismissal of the action.

JPMorgan Chase Bank National Association v. “Nellis”:

Lower Court granted Summary Judgment and Judgement of Foreclosure and Sale. Appellate Court reversed finding Plaintiff failed to offer sufficient evidence establishing strict compliance with RPAPL 1304. Court further found in favor of Defendant Homeowner on the grounds that Plaintiff failed to establish mailing of the required Notice of Default.

Bank of New York Mellon, etc. v “Ettinger”

Appeal of lower Court’s order of Final Judgment and Sale. Appellate Court reversed finding Plaintiff’s evidence supporting compliance with RPAPL 1304 failed to included proof of actual mailing or a standard mailing practice and procedure. The Court further found Plaintiff’s evidence of standing insufficient despite a copy of the note being attached to the complaint.

Wells Fargo Bank v. “Kohli”

Lower Court granted Summary Judgment and Final Judgment of Foreclosure and Sale. Appellate Court reversed the lower Court’s decision finding the business records relied upon by Plaintiff’s affiant was inadmissible due to insufficient foundation, leaving Plaintiff without evidence of Default. Court further found Plaintiff failed to establish a Notice of Default was given to Defendant Homeowner.

U.S. Bank National Association v. “Kochhar”

Summary Judgement Order issued by Lower Court appealed. Appellate Court agreed with Defendant Homeowner finding the business records relied upon by Plaintiff were inadmissible due to failure of a proper foundation. Court further held that Plaintiff’s evidence of giving Notice of Default was insufficient.

Nationstar Mortgage LLC v. “Bolivard”

Order of Final Judgment of Foreclosure and Sale issued by Lower Court reversed by Appellate Court. Appellate Court agreed with Defendant Homeowner that the business records were inadmissible hearsay as Plaintiff’s application lacked a proper foundation.

CitiMortgage Inc., etc. v. “Barbery”

Lower Court granted Summary Judgment and Final Judgment of Foreclosure and Sale. Appellate Court reversed finding lower Court should have granted Defendant Homeowners’ motion for leave to renew because Plaintiff’s delay in disclosing material information pertaining to the Note being lost was not in the control of the Defendant Homeowner.

U.S. Bank National Association v. “Ismail”

Summary Judgment granted by lower Court. Appellate court reversed finding Plaintiff’s evidence was not sufficient to establish compliance with RPAPL 1304.

PNMAC Mortgage Opportunity Fund Investors, LLC v. “Torres”

Lower Court granted Plaintiff Summary Judgment and Final Judgment of Foreclosure and Sale. Both Orders appealed. Appellate Court reversed finding Plaintiff’s evidence was not sufficient to establish a Notice of Default was given to Defendant Homeowner.

JPMorgan Bank, N.A. v. “Akanda”

Lower Court granted Summary Judgment and Final Judgment of Foreclosure and Sale. Both Orders appealed. Appellate Court reversed finding Plaintiff failed to establish Defendant Homeowner’s default because the business records offered were insufficient and inadmissible. Further, Plaintiff failed to establish strict compliance with RPAPL 1304 because there was no proof offered of actual mailing or a standard office mailing procedure.

HSBC Bank USA, Natl. v. “Bhatti”

Orders for Summary Judgment and Findal Judgment of foreclosure and Sale issued by lower Court appealed. Appellate Court reversed finding Plaintiff failed to offer a proper foundation for the business records relied upon for Plaintiff’s application. Further, Plaintiff failed to establish compliance with RPAPL 1304 as Plaintiff’s application lacked proof of actual mailing or a standard office mailing procedure. Lastly, Plaintiff’s evidence failed to show a Notice of Default was mailed to Defendant Homeowner.

Digital Fed. Credit Union v. “Chitti”

Summary Judgment granted to Plaintiff by lower Court appealed. Appellate Court reversed finding that, contrary to lower Court’s conclusion, if a homeowner lives at the property at the time a loan was originated, then a Bank is obligated to send a 90-Day pre-foreclosure notice even though Defendant Homeowner has subsequently moved.

US bank N.A. v. “Singh”

Summary Judgment Order issued by lower Court reversed. Appellate Court held that Plaintiff’s failure to demonstrate it complied with giving Notice of default per the terms of the Mortgage agreement required denial of Summary Judgment.

Wells Fargo Bank N.A. v “Cleophat”

Appellate Court reversed Summary Judgment order of lower Court on a number of grounds. Appellate court held Plaintiff failed to lay a proper foundation for the admission of the business records relied upon by its affiant. Plaintiff further failed to establish Notice pursuant to RPAPL 1304 and Notice of Default pursuant to the mortgage agreement were mailed as no evidence was offered to prove actual mailing or proof of a standard office mailing procedure.

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