In Wells Fargo Bank, N.A. v. Spatafore, the New York Appellate Division, Second Department affirmed a judgment of foreclosure and sale entered in favor of the mortgagee. The mortgagee moved for a final judgment directing the sale of the property and confirming the referee’s report of the amount due, while the homeowners cross-moved for a judgment dismissing the complaint on the ground that the mortgagee lacked the capacity and standing to sue. The trial court granted the mortgagee’s motion and awarded the mortgagee a sum that exceeded $1 million based on admissible evidence, including the loan documents and loan servicing business records. The trial court also found the homeowners waived a standing-related defense by failing to timely assert it. The intermediate appellate court concurred with the trial court’s assessments, finding the amount due was substantially supported by the record, and the homeowners irrevocably waived a lack of standing affirmative defense.

In Spatafore v. U.S. Bank Trust National Association – an action commenced by the same homeowners to recover damages for trespass against the mortgagee – the Second Department upheld the trial court’s order denying the homeowners’ summary judgment motion on the issue of liability because they failed to meet their burden to establish, prima facie, the mortgagee through its agent trespassed on their premises. In doing so, the trial and appellate courts found the mortgagees’ allegations an unidentified person who was purportedly acting on behalf of the mortgagee trespassed on their property were insufficient to prove the mortgagee unlawfully entered their property.

Friedman Vartolo LLP partner Zachary Gold Esq. and senior trial counsel Lance Colquitt Esq. successfully represented the prevailing plaintiff in the appellate court litigation. To read the entire decision, please click the link.