US Bank National Association v. Zeidman, Westchester County, Supreme Court Index No. 52204/2012
Foreclosing lenders often have back-office operations out-of-state. In US Bank v. Zeidman, the foreclosing lender’s back-office operations were performed by a loan servicing company located in California. In support of a motion for summary judgment in foreclosure, the lender filed an affidavit of its loan servicer’s Vice President of Loan Documentation. The Vice President’s affidavit contained a notary’s jurat and a “Uniform Certificate of Acknowledgment.” The defendant contended that the Vice President’s affidavit should be disregarded because it failed to comply with CPLR 2309(c) which provides, ” [a]n oath or affirmation taken without the state shall be treated as if taken with in the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the State if such deed had been acknowledged before the officer who administered the oath or affirmation.”
The court rejected the defendant’s argument and granted the lender summary judgment in foreclosure. Relying upon Real Property Law 299-a, the court ruled that to be valid in New York an acknowledgement may be taken either in the manner prescribed by the laws of New York or in the manner prescribed by the laws of the state where the acknowledgement is taken if it is accompanied by a certificate of conformity. The court then concluded that no certificate of conformity is required where the acknowledgement is taken in the manner prescribed by New York law. Because the acknowledgement on the Vice President’s affidavit was in the form prescribed by New York law, the court found it admissible.
The lesson of US Bank v. Zeidman is that courts will consider documents notarized out-of-state provided that the acknowledgment conforms to the requirements of New York law.