Wells Fargo holds foreclosure as estate runs out of defenses
On standing, the court found Wells Fargo’s predecessor held the note – endorsed in blank – when the action was commenced. A document execution associate at the loan servicer submitted an affidavit confirming possession. The estate did not raise a triable issue of fact.
On notice, a process server’s affidavit showed the administrator had been served with an RPAPL 1303 notice in the required format – bold 14-point type on colored paper distinct from the summons and complaint, with the title in 20-point type. That was enough.
The estate also argued it should have received a pre-foreclosure notice under RPAPL 1304. The court shut that down: the administrator was not a borrower and could not raise the defense on the deceased borrower’s behalf.
Then came the deadline. A referee computed $1,440,895.67 due on the note in a report dated January 23, 2019. Wells Fargo moved to confirm the report on March 9, 2022 – the same date it was filed. The estate did not object until June 9, 2022, more than 30 days later. Too late under CPLR 4403 and 22 NYCRR 202.44(a).
One last argument – that the document execution associate relied on unproduced business records – came up for the first time on appeal. The court would not hear it.
