A New York State Supreme Court has denied a motion for summary judgment by a lender seeking to foreclose a mortgage on a property. BRT Repo, LLC v. Roberts, (2001 NY Slip Op 50048 Kings County). The defendant had originally obtained a loan from Washington Mutual Bank (“WAMU”) and signed a mortgage note to WAMU granting it a lien over the property. WAMU was subsequently acquired by JP Morgan Chase Bank (“Chase”) which became the owner of the mortgage note. Chase then assigned the mortgage note to a third party, GS Brooklyn Apts. LLC (“GSB”) which then also later assigned the mortgage note to the curent lender, BRT Repo, LLC (“the plaintiff”).
The Court denied the motion for summary judgment by the plaintiff on the basis that the affidavits submitted by the plaintiff to the Court were not based on actual personal knowledge of the transaction and of the original default by the property owner during the time Chase was the lender. Even though an affidavit from a Chase vice president was submitted in support of the motion, the Court stated that these affidavits were not submitted in the regular course of business and were therefore not admissible as a business record.