Incomplete appeal record sinks borrower’s foreclosure defense against U.S. Bank
In August 2019, the borrower reportedly moved to vacate her default in opposing the bank’s summary judgment motion. The court denied that effort in December 2019.
She tried again in February 2022, when U.S. Bank moved for a judgment of foreclosure and sale. The borrower cross-moved for leave to renew her earlier motion, sought to amend her answer with new affirmative defenses, and asked the court to dismiss the complaint as time-barred and for failure to comply with RPAPL 1304 – the New York statute requiring lenders to send a 90-day pre-foreclosure notice before filing suit.
The Supreme Court denied the cross-motion on November 13, 2023. She appealed.
The Second Department never reached the substance of her arguments. The court found the borrower had failed to include critical documents in her appellate record: the bank’s original summary judgment papers, her own prior motion to vacate and its supporting materials, the bank’s opposition, and the December 2019 order denying it.
“It is the obligation of the appellant to assemble a proper record on appeal,” the court wrote, citing established precedent. Without the missing filings, the panel said, “meaningful appellate review” was “virtually impossible.”
