FEDERAL NATIONAL MORTGAGE ASSOCIATION v. MARKOWITZ (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Isaac Markowitz appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 10, 2023.  The order and judgment of foreclosure and sale, insofar as appealed from, granted those branches of the motion of U.S. Bank Trust National Association, as the plaintiff's assignee, which were to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.

In November 2011, Citimortgage, Inc., commenced this foreclosure action against the defendant Isaac Markowitz (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Brooklyn, alleging that the defendant defaulted in his mortgage payments.  Thereafter, the mortgage was assigned to the plaintiff.  The plaintiff subsequently assigned the mortgage to U.S. Bank Trust National Association, not in its individual capacity, but solely as Owner Trustee for VRMTG Asset Trust (hereinafter U.S. Bank).  In September 2022, U.S. Bank, as the plaintiff's assignee, moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale.  In an order and judgment of foreclosure and sale dated March 10, 2023, the Supreme Court, among other things, granted those branches of the motion, confirmed the referee's report, and directed the sale of the property.  The defendant 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” (HSBC Bank USA, N.A. v. Blair–Walker, 202 A.D.3d 1065, 1068, 163 N.Y.S.3d 582 [internal quotation marks omitted];  see U.S. Bank N.A. v. Young, 214 A.D.3d 841, 842–843, 183 N.Y.S.3d 760;  33–37 Farrington, LLC v. Global Universal Group, Ltd., 165 A.D.3d 1018, 1019–1020, 87 N.Y.S.3d 302).  “The referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” (Nationstar Mtge., LLC v. Hassanzadeh, 228 A.D.3d 948, 950, 214 N.Y.S.3d 437;  see Excel Capital Group Corp. v. 225 Ross St. Realty, Inc., 165 A.D.3d 1233, 1236–1237, 87 N.Y.S.3d 604).

Here, the referee relied on the affidavit of a document verification specialist of NewRez, LLC, doing business as Shellpoint Mortgage Servicing (hereinafter Shellpoint), the servicer for U.S. Bank. The affidavit attached, inter alia, a copy of the note;  the mortgage;  assignments of mortgage;  printouts of payoff amounts and expenses, including insurance, taxes, and transaction fees;  a loan history summary;  and a loan corporate advance fee history.  The business records that the affiant relied upon, in calculating the amounts due and owing, and upon which the referee relied, were annexed to the affidavit.  Contrary to the defendant's contention, the affidavit successfully laid a foundation for the admissibility of business records annexed to the affidavit evidencing certain amounts due, including those records created by prior loan servicers, as the affiant “made the requisite showing that the prior servicer[s'] records were incorporated into [Shellpoint's] own records and routinely relied upon by [Shellpoint] in its business” (Wilmington Trust, N.A. v. Reed, 210 A.D.3d 731, 732, 177 N.Y.S.3d 642;  see U.S. Bank N.A. v. Kropp–Somoza, 191 A.D.3d 918, 921, 143 N.Y.S.3d 52).

Accordingly, the referee's computations were substantially supported by the record, and, thus, the Supreme Court properly confirmed the referee's report (see Nationstar Mtge., LLC v. Hassanzadeh, 228 A.D.3d at 951, 214 N.Y.S.3d 437).

The defendant's remaining contentions are without merit.

DUFFY, J.P., MILLER, CHRISTOPHER and VENTURA, JJ., concur.