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Scott E. Mollen Scott E. Mollen

Foreclosures—Appellate Division Addresses Evidence Foundation Issues Involving Business Records— “Unprecedented Spike” in Foreclosure Actions After Financial Crises—Confusion About Procedural, Substantive and Evidentiary Law in Foreclosure Context

A defendant in a foreclosure action appealed from a trial court order which, inter alia, granted a plaintiff lender’s motion for summary judgment and dismissed the defendant’s affirmative defenses and counterclaims. The trial court, in essence, denied the defendant’s cross motion to dismiss the complaint or, in the alternative, to compel disclosure and for leave to enter a default judgment on his cross claims asserted against the defendant Mortgage Electronic Registration Systems (MERS).

The Appellate Division (court) explained that “[i]n the wake of the financial crisis that began in 2008, the trial courts…have faced an unprecedented spike in judicial foreclosure actions. The challenges…have been compounded by poor record-keeping practices, a changing regulatory environment, inordinate delays, and inadequate legal representation. The…number of foreclosure cases has also resulted in a renewed focus on the relevant legal principles.” There has been “repeated confusion about…aspects of the procedural, substantive, and evidentiary law that must be…applied in a foreclosure context.” To provide additional “clarity,” the court deemed it “appropriate to…reiterate some of these foundational principles” in an effort to “eliminate many of the disputes” that seem to reoccur.

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