Matter of US Bank N.A. v. Merino
Docket Index No. 380003/10|Appeal No. 6461|Case No. 2025-03988|
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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 02477
- Docket numbers
- Index No380003/10Appeal No6461Case No2025-03988
Appeal from a Supreme Court order denying plaintiff's motion to confirm a Referee's report and for a judgment of foreclosure and sale and granting defendant's cross-motion to toll mortgage interest.
Summary
The Appellate Division, First Department affirmed a Bronx Supreme Court order that denied US Bank's motion to confirm a Referee's report and for a judgment of foreclosure and sale, and granted defendant Moises Merino's cross-motion to toll mortgage interest for certain multi-year periods. The court found the Referee relied solely on a servicer employee's affidavit and attached records that lacked sufficient attestation or identifying marks tying them to the plaintiff or a particular servicer, so confirmation was improper. The court also held the lender caused lengthy delays in the referee process that prejudiced Merino, warranting equitable tolling of interest.
Issues Decided
- Whether the Referee's report could be confirmed where the report's figures were supported only by an affidavit from a loan-servicer employee and records that lacked adequate attestation or identifying marks linking them to the plaintiff or a servicer.
- Whether the court properly exercised equitable power to toll post-judgment interest on the mortgage due to plaintiff-caused delays in the referee process.
Court's Reasoning
The court concluded the Referee's reliance on the servicer employee's affidavit was insufficient because the affiant did not state whether SLS or a prior servicer actually created the underlying records and the records lacked identifying marks tying them to the loan or to plaintiff. Without adequate foundation and identification, the Referee's calculations could not be confirmed. Separately, the court found plaintiff could not account for substantial delays in the referee appointments and report issuance, and those delays materially prejudiced Merino by allowing interest to accrue beyond principal; equity therefore permitted tolling of the specified interest periods.
Authorities Cited
- Bank of New York Mellon v Gordon171 AD3d 197 (2d Dept 2019)
- People's United Bank v Patio Gardens III, LLC189 AD3d 1622 (2d Dept 2020)
- Bank of New York Mellon v Davis219 AD3d 420 (1st Dept 2023)
Parties
- Plaintiff
- US Bank National Association
- Defendant
- Moises R. Merino
- Defendant
- Mortgage Electronic Registration Systems, Inc.
- Appellant
- US Bank National Association
- Respondent
- Moises R. Merino
- Attorney
- Louis A. Levithan (Knuckles & Manfro, LLP)
- Attorney
- James Tierney (Petroff Amshen LLP)
- Judge
- Naita A. Semaj
Key Dates
- Decision date
- 2026-04-23
- Supreme Court order entered
- 2025-05-27
What You Should Do Next
- 1
For plaintiff (US Bank): consider seeking further review
Evaluate whether to apply for leave to the New York Court of Appeals or identify additional admissible evidence that properly establishes the loan accounting and document chain of custody.
- 2
For defendant (Merino): enforce tolling order and monitor accounting
Ensure the court's tolling periods are applied in any accounting and confirm that any future calculations exclude tolled interest; consult counsel before any settlement or payment.
- 3
For both parties: preserve and produce clear records
Plaintiff should assemble attestations showing who created each record and linking records to the loan; defendant should request and review those records and raise foundation objections promptly.
Frequently Asked Questions
- What did the court decide?
- The appeals court affirmed the lower court's refusal to confirm a foreclosure Referee's report and upheld tolling of mortgage interest for certain long delay periods caused by the lender.
- Who is affected by this decision?
- US Bank (the foreclosing plaintiff) and defendant homeowner Moises Merino are directly affected; the decision limits the bank's ability to confirm the Referee's accounting and reduces interest owed during specified delay periods.
- Why was the Referee's report not confirmed?
- Because the supporting affidavit and records lacked sufficient foundation and identifying information showing who created the documents or that they related to this loan, so the court could not accept the Referee's calculations.
- What does tolling interest mean here?
- The court ordered that interest on the mortgage not accrue for the specified time frames during which the lender's delay prejudiced the defendant, effectively reducing the total interest owed.
- Can the bank appeal again?
- The decision is an Appellate Division ruling; the bank could seek further review by higher court (e.g., New York Court of Appeals) if permitted, but options depend on available leave to appeal and timing.
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
Matter of US Bank N.A. v Merino - 2026 NY Slip Op 02477 Matter of US Bank N.A. v Merino 2026 NY Slip Op 02477 April 23, 2026 Appellate Division, First Department In the Matter of US Bank National Association etc., Plaintiff-Appellant, v Moises R. Merino, Defendant-Respondent, Mortgage Electronic Registration Systems, Inc. et al., Defendants. Decided and Entered: April 23, 2026 Index No. 380003/10|Appeal No. 6461|Case No. 2025-03988| Before: Manzanet-Daniels, J.P., Kennedy, González, Pitt-Burke, Rosado, JJ. Knuckles & Manfro, LLP, Tarrytown (Louis A. Levithan of counsel), for appellant. Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for respondents. Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about May 27, 2025, which denied without prejudice plaintiff's motion to confirm a Referee's report and for a judgment of foreclosure and sale, and which granted the cross-motion of defendant Moises R. Merino pursuant to CPLR 5001 (a) to toll interest on the subject mortgage from October 12, 2012 to March 20, 2020 and from November 3, 2020 to June 8, 2023, unanimously affirmed, without costs. The court properly declined to confirm the Referee's report. In arriving at his conclusions regarding the amounts due from defendant Merino on the subject loan, the Referee relied exclusively on an affidavit from an employee of plaintiff's loan servicer, Specialized Loan Servicing LLC (SLS) and the exhibits annexed thereto. The employee laid a proper foundation for records from SLS and prior loan servicers, whose records he attested were routinely "integrated and boarded into SLS's systems" and whose accuracy SLS routinely relied upon ( see Bank of N.Y. Mellon v Gordon , 171 AD3d 197, 209 [2d Dept 2019]). However, he did not state whether SLS or a prior servicer created the specific records that he relied on to show the amounts due from Merino, or whether those records instead came from plaintiff itself, about whose records he made no attestations. Nor were there sufficient identifying marks on the records indicating who made them or any other text identifying the loan with which the records were associated. The court providently exercised its discretion in granting Merino's cross-motion to toll interest ( see People's United Bank v Patio Gardens III, LLC , 189 AD3d 1622, 1622-23 [2d Dept 2020]; c.f. Bank of N.Y. Mellon v Davis , 219 AD3d 420-421 [1st Dept 2023]). Plaintiff failed to explain the year-and-a-half gap between the appointment of the fourth referee and its motion to replace him, nor did it account for the nearly four-year delay between the appointment of the Referee whose report is at issue and the release of his report. In addition, the record suggests that plaintiff was responsible for the decision of one of the Referees to decline his appointment based on an "insufficient fee." The delays resulted in significant prejudice to Merino, since the accumulated interest exceeded the outstanding principal. Accordingly, tolling of the interest was within the court's equitable power ( see People's United Bank , 189 AD3d at 1622). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 23, 2026