NEW YORK CASE LAW UPDATE
AXIOM Bank v Dutan, ___AD3d___, 2021 NY Slip Op 00141 [2d Dept 2021]
In a foreclosure action, the Appellate Division affirmed on appeal the judgment of foreclosure and sale, finding that the lender established its strict compliance with RPAPL § 1304, as well as its substantial compliance with paragraph 22 of consolidated mortgage, which required service of specified default notice as condition precedent to acceleration of loan, and further finding that the borrowers’ bare denials of receipt were insufficient to establish their entitlement to summary judgment.

NEW YORK CASE LAW UPDATE
U.S. Bank Trust, N.A v Moomey-Stevens, ___AD3d___, 2020 NY Slip Op 07440 [3d Dept 2020]
On appeal, the Appellate Division affirmed the Supreme Court’s post-trial decision in a foreclosure action, finding that the lender had proven its standing to bring the action as it had physical possession of original note at time the action was commenced as loan servicer's electronic inventory report, together with testimony from default servicing officer, showed that plaintiff came into physical possession of the note in 2016 before commencement of the action in 2017.

NEW YORK CASE LAW UPDATE
Aspen Shackleton III, LLC v Gordon, 189 AD3d 967 [2d Dept 2020]
On an appeal brought by an HOA seeking review of a summary judgment order issued in a foreclosure action on a modified mortgage, the Appellate Division affirmed the Supreme Court’s granting of summary judgment in favor of the lender, finding that HOA’s continuing lien for unpaid common charges created by its governing Declaration of Covenants, Restrictions, Easements, Charges and Liens, which was recorded prior to the mortgage, “merely provided for a potential lien” for unpaid common charges incurred by the borrower, and thus, gave notice “only of a potential claim” that did not have priority over the lender’s mortgage.

NEW YORK CASE LAW UPDATE
Wells Fargo Bank, N.A. v Khan, 188 AD3d 952 [2d Dept 2020]
In a rare reversal of a trial court’s denial of a reargument motion on appeal, the Appellate Division reversed the Supreme Court’s denial of the lender’s reargument motion for summary judgment in a foreclosure action, finding that the lender had established its standing to commence the action “by attaching a copy of the note, indorsed in blank, to the complaint”, and that the borrowers’ allegations of fraud “failed to raise a triable issue of fact”.