Wilmington Trust, National Association, respondent, v. Rudolph E. Walker, appellant, et al., defendants. (2026)

Argued—January 13, 2026

DECISION & ORDER

Q/

In an action to foreclose a mortgage, the defendant Rudolph E. Walker appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 29, 2024.  The order and judgment of foreclosure and sale granted the plaintiff's motion 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 reversed, on the law, with costs, and the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied.

In March 2007, the plaintiff's predecessor in interest commenced this action against the defendant Rudolph E. Walker (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Brooklyn.  The defendant did not answer the complaint.  More than ten years later, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference.  The Supreme Court granted the unopposed motion and appointed a referee.

The plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale.  In support, the plaintiff submitted the report of the referee, who determined the total amount owed on the note as of March 2, 2017.  The referee attached an abstract of the documentary evidence he had reviewed, which consisted of the note, the mortgage, the plaintiff's affidavit of merit, and the summons and complaint.  The plaintiff's affidavit of merit was executed by Jack Whitmarsh, a vice president of loan documentation for Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the plaintiff's loan servicer.  Whitmarsh stated that he was familiar with Wells Fargo's records and record-keeping practices and averred to the total amount due on the note as of March 2, 2017.  Whitmarsh did not attach any business records to his affidavit.

The defendant opposed the motion, contending, inter alia, that the plaintiff failed to provide the business records relied upon by Whitmarsh.  In an order and judgment of foreclosure and sale dated May 29, 2024, the Supreme Court granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property.  The defendant appeals.

The Supreme Court erred in confirming the referee's report.  Generally, the report of a referee should be confirmed whenever the findings are substantially supported by the record (see Nationstar Mtge., LLC v. Lewis, 238 AD3d 777, 778;  U.S. Bank N.A. v. Jong Shin, 224 AD3d 933, 936).  Computations based upon a review of unidentified and unproduced business records, however, constitute inadmissible hearsay and lack probative value (see U.S. Bank N.A. v. Jong Shin, 224 AD3d at 936;  Pennymac Corp. v. Pryce, 211 AD3d 1029, 1030).  Here, the referee's findings with respect to the amount due in principal and interest on the note were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records (see Bank of N.Y. Mellon v. Glasgow, 232 AD3d 754, 755–756;  Wilmington Sav. Fund Socy., FSB v Mehraban, 192 AD3d 1066, 1068).

Accordingly, the Supreme Court should have denied the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale.

The parties' remaining contentions either are not properly before this Court or need not be reached in light of our determination.

BARROS, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court