U.S. Bank Nat'l Ass'n v. Eaddy

• Decision Date: 18 September 2013
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Shelley R. EADDY, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 908
971 N.Y.S.2d 336
2013 N.Y. Slip Op. 05896

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,
v.
Shelley R. EADDY, appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 18, 2013.

Shelley R. Eaddy, Stony Point, N.Y., appellant pro se.

Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn and Jordan L. Estes of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

[109 A.D.3d 908]In an action to foreclose a mortgage, the defendant Shelley R. Eaddy appeals from an order of the Supreme Court, Rockland [109 A.D.3d 909]County (Berliner, J.), entered October 11, 2011, which granted the plaintiff's motion pursuant to CPLR 2001 and 5019(a), inter alia, to substitute, nunc pro tunc, newly signed affidavits of merit and of the amount due in place of the affidavits of merit and of the amount due that were

[971 N.Y.S.2d 337]

attached to the plaintiff's application for an order of reference and application for a judgment of foreclosure and sale.

ORDERED that the order is affirmed, with costs.

On October 26, 2007, the plaintiff commenced the instant action to foreclose on the residential mortgage of the defendant Shelley R. Eaddy. On October 20, 2010, which was after the plaintiff obtained a judgment of foreclosure and sale, but before the subject property was sold, then Chief Administrative Judge Ann T. Pfau issued Administrative Order 548/10, which has since been amended by Administrative Order 431/11. Administrative Order 548/10 required that the plaintiff's counsel in a residential mortgage foreclosure action file an affirmation with the court, confirming that he or she communicated with a representative of the plaintiff, who informed counsel that he or she “(a) has personally reviewed [the] plaintiff's documents and records relating to this case; (b) has reviewed the [s]ummons and [c]omplaint, and all other papers filed in this matter in support of foreclosure; and (c) has confirmed both the factual accuracy of these court filings and the accuracy of the notarizations contained therein.” The filing of this attorney's affirmation is mandatory ( see LaSalle Bank, NA v. Pace, 100 A.D.3d 970, 955 N.Y.S.2d 161;Wells Fargo Bank, N.A. v. Hudson, 98 A.D.3d 576, 578, 949 N.Y.S.2d 703;Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 1045, 943 N.Y.S.2d 551;US Bank, N.A. v. Boyce, 93 A.D.3d 782, 940 N.Y.S.2d 656). Where, as here, a judgment of foreclosure has...