In U.S. Bank National Association v. USA Brooklyn Enterprises, Inc., the Appellate Division, Second Department, decided an appeal by defendant USA Brooklyn Enterprises, Inc. from a Kings County Supreme Court order issued by Judge Richard Velasquez on January 10, 2023. The order granted U.S. Bank’s motion for, inter alia, summary judgment and the appointment of a referee to compute.

The primary issue before the trial and appellate courts was whether the plaintiff that commenced the foreclosure in 2008 – Countrywide Home Loans, Inc. – had standing to commence the foreclosure. To prove Countrywide had standing, the plaintiff submitted an affidavit from an employee of Bank of America, N.A. – Countrywide’s successor by merger – that was supported by a copy of the mortgage note endorsed in blank as well as business records that reflected the date on which Countrywide came into possession of the original note. The plaintiff also submitted proof from the New York Department of State, which showed Countrywide had done business under the assumed name of the loan originator America’s Wholesale Lender.  Based on these proofs, the intermediate appellate court concluded Countrywide had standing at the inception of the foreclosure.

The Second Department rejected the defendant’s argument the plaintiff was required to prove the note was endorsed to it because Countrywide was, in effect, the original lender. The appellate court also denounced the defendant’s argument the plaintiff did not submit admissible business records.