Wells Fargo Bank v. Daniel

2024 NY Slip Op 05000

Wells Fargo Bank, N.A., etc., appellant, v. Brenth Daniel, respondent, et al., defendants.

2022-04949, Index No. 12930/09

Supreme Court of New York, Second Department

October 9, 2024

Friedman Vartolo LLP, New York, NY (Ronald P. Labeck of counsel), for appellant.

Villanti Law Group LLC, Brooklyn, NY (Christopher Villanti of counsel), for respondent.

BETSY BARROS, J.P., LINDA CHRISTOPHER, BARRY E. WARHIT, CARL J LANDICINO, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Mark I. Partnow J.), dated April 28, 2022. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale and granted the motion of the defendant Brenth Daniel to toll the accrual of interest on the subject mortgage loan to the extent of tolling the accrual of interest from November 12, 2010, to January 24, 2014, and from November 21, 2014, to August 3, 2017.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In May 2009, the plaintiff's predecessor in interest commenced this action against the defendant Brenth Daniel (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Brooklyn. The defendant did not answer the complaint. In January 2019, the Supreme Court issued an order of reference.

The plaintiff subsequently moved, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale. The defendant cross-moved to dismiss the complaint insofar as asserted against him and separately moved to toll the accrual of interest on the subject mortgage loan based on the plaintiff's prolonged delay in the prosecution of the action. In an order dated April 28, 2022, the Supreme Court, among other things, denied those branches of the plaintiff's motion and granted the defendant's motion to toll the accrual of interest on the mortgage loan to the extent of tolling the accrual of interest from November 12, 2010, to January 24, 2014, and from November 21, 2014, to August 3, 2017. The plaintiff appeals.

"The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" (Flagstar Bank, F.S.B. v Konig, 153 A.D.3d 790, 790-791; see Bank of N.Y. Mellon v Conforti, 209 A.D.3d 942, 946). "However, computations based on the review of unidentified and unproduced business records... constitute[ ] inadmissible hearsay and lack[ ] probative value" (Bank of N.Y. Mellon v Conforti, 209 A.D.3d at 946 [internal quotation marks omitted]; see U.S. Bank N.A. v Jong Shin, 224 A.D.3d 933, 936).

Here, the referee's report was improperly premised upon unproduced business records. In support of its motion, the plaintiff submitted an affidavit of Ron McMahan, an employee of American Mortgage Investment Partners Management, LLC, the "attorney-in-fact for the named [p]laintiff's assignee... the current holder of the Note and Mortgage," which the referee relied upon in computing the amount due to the plaintiff. However, the record does not reflect that the plaintiff submitted the business records upon which McMahan or the referee relied in computing the amount due to the plaintiff. Therefore, the referee's findings were not substantially supported by the record (see U.S. Bank N.A. v Jong Shin, 224 A.D.3d at 936; Nationstar Mtge., LLC v Douglas, 218 A.D.3d 599, 601; Bank of N.Y. Mellon v Conforti, 209 A.D.3d at 946). Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale.

The plaintiff contends that the Supreme Court erred in tolling the accrual of interest on the mortgage loan because the defendant failed to establish that the plaintiff engaged in any wrongful conduct or egregious actions that would warrant such relief. However, the plaintiff's contention is without merit. "A foreclosure action is equitable in nature and triggers the equitable powers of the court" (Bank of N.Y. Mellon v George, 186 A.D.3d 661, 663; see GMAC Mtge., LLC v Yun, 206 A.D.3d 798). "In an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party" (BAC Home Loans Servicing, L.P. v Jackson, 159 A.D.3d 861, 862 [internal quotation marks omitted]; see GMAC Mtge., LLC v Yun, 206 A.D.3d at 798). Thus, a court in a mortgage foreclosure action has the authority to toll the accrual of interest on a mortgage loan where a party engages in wrongful conduct (see e.g. LaSalle Bank, N.A v Dono, 135 A.D.3d 827, 829; Norwest Bank Minn., NA v E.M.V. Realty Corp., 94 A.D.3d 835, 836-837; Dayan v York, 51 A.D.3d 964, 965), such as, for instance, where the plaintiff-mortgagee fails to negotiate a loan modification in good faith (see LaSalle Bank, N.A. v Dono, 135 A.D.3d at 829; US Bank N.A v Williams, 121 A.D.3d 1098,...