Bank of Am. v. Sands
Docket Index No. 810068/10|Appeal No. 6456|Case No. 2025-01291|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02443
- Docket numbers
- Index No810068/10Appeal No6456Case No2025-01291
Appeal from an order and judgment in Supreme Court, New York County, confirming a Referee's report and granting plaintiff's motion for a judgment of foreclosure and sale.
Summary
The Appellate Division, First Department affirmed the foreclosure judgment entered for Bank of America against defendant Nicholas Sands. The court confirmed the Referee's report on the amount due because the bank submitted admissible business records and supporting filings, and Sands failed to produce proof of payments or raise evidentiary objections. The court found any failure to calendaring a post-report hearing did not prejudice Sands. It declined to review a separate challenge to service of a 90-day notice because Sands had abandoned that issue by not appealing the prior order or raising it below. The court also held the loan was not a protected "home loan."
Issues Decided
- Whether the Referee's report of amounts due on the mortgage was properly confirmed based on the bank's business records and filings.
- Whether the defendant was prejudiced by the failure to notice a post-report hearing under CPLR 4313.
- Whether the defendant may challenge service of the RPAPL 1304 90-day notice after abandoning the prior appeal and failing to raise the issue below.
- Whether the loan qualified as a statutory "home loan" subject to RPAPL 1304 protections.
Court's Reasoning
The court held the Referee's findings were substantially supported because the plaintiff submitted business records and the documents referenced on the docket, and the plaintiff's affiant authenticated the records under CPLR 4518(a). The defendant did not identify evidentiary objections or produce unrecorded payment evidence, and he had an opportunity to contest the computations to the Referee but did not do so. Any procedural failure to notice a hearing under CPLR 4313 caused no prejudice since the defendant opposed confirmation and had a chance to contest the report. Finally, loan documents and riders showed the mortgage did not meet the statutory definition of a protected home loan.
Authorities Cited
- CPLR 4403
- CPLR 2214(c)
- CPLR 4518(a)
- RPAPL 1304
- HSBC Bank USA, N.A. v Wu242 AD3d 599 (1st Dept 2025)
Parties
- Plaintiff
- Bank of America
- Defendant
- Nicholas J. Sands Also Known as Nicholas Sands
- Appellant
- Nicholas J. Sands
- Respondent
- Bank of America
- Attorney
- David R. Smith (The David R. Smith Law Group PLLC) - for appellant
- Attorney
- Leah R. Lenz (Hinshaw & Culbertson LLP) - for respondent
- Judge
- Francis A. Kahn, III
Key Dates
- Decision date
- 2026-04-23
- Order entered (Supreme Court)
- 2025-01-14
- Judgment entered (Supreme Court)
- 2025-04-23
What You Should Do Next
- 1
Consult foreclosure counsel
Affected parties should consult an attorney experienced in foreclosure appeals to discuss whether leave to appeal to the Court of Appeals is available and advisable.
- 2
Review payment and evidence records
The defendant should gather all payment records and documentation not previously submitted to evaluate any post-judgment relief options or potential claims for equitable relief.
- 3
Prepare for foreclosure sale
If no further successful appeal is pursued, the bank may proceed with the foreclosure sale; the defendant should seek counsel about possible redemption or loss-mitigation alternatives.
Frequently Asked Questions
- What did the court decide?
- The court affirmed the foreclosure judgment and confirmed the Referee's report calculating the amount owed to the bank.
- Why did the bank prevail?
- The bank provided authenticated business records and documented filings supporting the calculations, and the defendant failed to produce evidence of payments or valid objections.
- Can the defendant still challenge the 90-day notice service?
- The court declined to review that challenge because the defendant abandoned the earlier appeal and did not raise the issue below, making it forfeited.
- What does the decision mean for the property?
- The foreclosure judgment stands, allowing the bank to proceed with foreclosure and sale processes authorized by the judgment unless further relief is obtained.
- Can this decision be appealed further?
- The defendant may seek leave to appeal to the Court of Appeals, but success would depend on preserving issues and showing an error of law or significant procedural mistake.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Bank of Am. v Sands - 2026 NY Slip Op 02443 Bank of Am. v Sands 2026 NY Slip Op 02443 April 23, 2026 Appellate Division, First Department Bank of America etc., Plaintiff-Respondent, v Nicholas J. Sands Also Known as Nicholas Sands, Defendant-Appellant, JPMorgan Chase Bank, N.A. as Successor to Washington Mutual Bank, F.A., et al., Defendants. Decided and Entered: April 23, 2026 Index No. 810068/10|Appeal No. 6456|Case No. 2025-01291| Before: Manzanet-Daniels, J.P., Kennedy, González, Pitt-Burke, Rosado, JJ. The David R. Smith Law Group PLLC, New York (David R. Smith of counsel), for appellant. Hinshaw & Culbertson LLP, New York (Leah R. Lenz of counsel), for respondent. Appeal from order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered or about January 14, 2025, which granted plaintiff's motion for a judgment of foreclosure and sale and to confirm the Referee's report as to the amount due on the mortgage, deemed appeal from the judgment, same court and Justice, entered April 23, 2025, awarding judgment to plaintiff, and, so considered, the judgment unanimously affirmed, with costs. Supreme Court properly confirmed the Referee's report, as the findings are substantially supported by the record ( see HSBC Bank USA, N.A. v Wu , 242 AD3d 599, 601 [1st Dept 2025]; CPLR 4403). Plaintiff's affiant proffered the business records on which the calculations were based, all the documents annexed to the Referee's report were previously filed electronically with Supreme Court, and plaintiff's attorney affirmation in support of the motion referenced the docket numbers of those documents (CPLR 2214[c]; see Matter of Dubuche v New York City Tr. Auth. , 230 AD3d 1026, 1027 [1st Dept 2024]). Plaintiff's affiant established these documents as business records on which the calculations were based (CPLR 4518[a]). Defendant "identifies no evidentiary objections to the statements therein" and fails to identify any "unproduced business records," as his payment history after the default is specifically included ( U.S. Bank N.A. v Tiburcio , 242 AD3d 591, 592 [1st Dept 2025]). Indeed, defendant was given the opportunity to submit evidence to the Referee showing any additional payments made or challenging the computations generally, but he failed to do so ( see id. ). The failure to notice a hearing under CPLR 4313 is immaterial. Defendant was not prejudiced because he "opposed plaintiff's motion to confirm the report and had an opportunity to contest the report" ( id. , citing Aurora Loan Servs., LLC v Taylor , 114 AD3d 627, 630 [2d Dept 2014], affd 25 NY3d 355 [2015]; see also Wells Fargo Bank N.A. v Javier , 153 AD3d 1199, 1200 [1st Dept 2017]). We decline to review defendant's challenge to proper service of the 90-day notice under RPAPL 1304, as he abandoned his appeal of the order which granted summary judgment to plaintiff after finding compliance therewith, and he failed to raise the issue in opposition to the motion for a judgment of foreclosure and sale ( see Bray v Cox , 38 NY2d 350, 353 [1976]; Fellner v Aeropostale, Inc. , 150 AD3d 598, 599 [1st Dept 2017]; see also Rules of App Div, All Depts [22 NYCRR] § 1250.10[a]; cf. Mongeau v SR Taxi Corp. , 235 AD3d 500, 500-501 [1st Dept 2025]). On the merits, defendant's argument is unavailing. The loan documents demonstrate that the loan in question was not a "home loan" under the statutory definition (RPAPL 1304[6][a][1][iii]). Defendant admittedly did not live in this condominium unit at the time he signed the original mortgage agreement, the 1-4 Family Rider in the original agreement deleted the occupancy-by-borrower requirement ( see Wall St. Mtge. Bankers, Ltd. v Berquin , 213 AD3d 972, 975 [2d Dept 2023]), and the modified mortgage agreement included a second home rider precluding occupancy as a primary residence ( see U.S. Bank N.A. v Simmons , 230 AD3d 621, 622 [2d Dept 2024]; JP Morgan Chase Bank, N.A. v Venture , 148 AD3d 1269, 1271 [3d Dept 2017]). We have considered defendant's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 23, 2026