Adam Leitman Bailey, P.C. was retained by a lender in connection with the foreclosure of a business purpose loan on a residential premises in Suffolk County. Once the firm moved for summary judgment, the defendants argued that the affidavit of a Vice President from the loan servicer and attorney-in-fact to the plaintiff was insufficient to support summary judgment because the affiant did not have the authority to act under the limited power of attorney. Defendants argued that because the power of attorney gave the servicer only the power to perform specific acts, the servicer did not have the power to provide an affidavit in foreclosure litigation. Defendants also argued that the affidavit from the loan servicer was, regardless, insufficient to establish that the plaintiff complied with the notice requirements of the mortgage in that the affidavit did not constitute evidence of actual mailing of the notices.
In response, Adam Leitman Bailey, P.C. argued that the Second Department has routinely held that an affidavit from a mortgage lender’s servicer is sufficient to demonstrate a lender’s entitlement to summary judgment. All that is required for a servicer to demonstrate its authority to act on behalf of a mortgage lender is the submission of a power of attorney establishing that power. Here, although the Defendants argued otherwise, Adam Leitman Bailey, P.C.. argued that the plain language of the power of attorney specifically granted the servicer to do exactly what the Defendants claimed it could not. Adam Leitman Bailey, P.C. also argued that there is a plethora of New York case law that holds that an affidavit of service from the mailer is sufficient to demonstrate compliance with the notice requirements of the 30-day breach letters and/or the 90-day notices, and the firm was sure to include affidavits of service from the people who actually mailed the notices with the moving papers to guard against this very argument.
The court in this case adopted Adam Leitman Bailey, P.C.’s arguments in their entirety. It found that the plain language of the power of attorney provided that the attorney-in-fact has the authority in a judicial foreclosure action to prepare documents. It further found that the affidavits of service from the individuals that actually mailed the notices were sufficient to establish compliance with the notice requirements. The Court granted the motion, and the firm secured the win for the plaintiff.