Opinion

U.S. Bank Trust, N.A. v. Michalczyk

  • 2026 NY Slip Op 30006(U)
Court
New York Supreme Court, Suffolk County
Filed
Jan 12, 2026
Status
Unpublished
Author
Thomas F. Whelan
Cited by
0 cases
Authority
More cited than 38.2%

The opinion

U.S. Bank Trust, N.A. v Michalczyk

2026 NY Slip Op 30006(U)

January 12, 2026

Supreme Court, Suffolk County

Docket Number: Index No. 602779/2020

Judge: Thomas F. Whelan

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

FILED: SUFFOLK COUNTY CLERK 01/13/2026 01:36 PM INDEX NO. 602779/2020

NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 01/13/2026

MEMO DECISION & ORDER INDEX No. 602779/2020

SUPREME COURT - STATE OF NEW YORK

IAS PART 33 - SUFFOLK COUNTY

PRESEN T:

Hon. THOMAS F. WHELAN MOTION DA TE 10/17/2025

Justice of the Supreme Court SUBMIT DATE 10/17/2025

Mot. Seq. # 007 - MG

CDISP Y X

X

U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 KNUCKLES & MANFRO, LLP

MASTER PARTICIPATION TRUST, Attys. for Plaintiff

120 White Plains Road, Suite 215

Plaintiff, Tarrytown, NY 10591

-against-

MILDRED J. MICHALCZYK; HSBC BANK USA, MILDRED J. MICHALCZYK, ESQ.

Self Represented Defendant

16 Walnut Avenue East

Defendants. East Farmingdale, NY 11735

X

Upon the following papers numbered as indicated and read on this motion For judgment of foreclosure and

sale; Notice of Mot ion/Order to Show Cause and supporting papers: NYSCEF Doc. 163 - 173 ; Notice of Cross

Motion and supporting papers : _ _ ; Opposing papers: NYSCEF Doc. 174 - 184 ; Supplemental papers:_

NYSCEF Doc. 194 - 200; 20 I - 219 ; Other _ _ _ ; (1md afte1 Iteming coumel in 5apport and oppo5ed to tire

motton) it is

ORDERED that this motion (#007) by the plaintiff for, inter alia, leave to enter a judgment

of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law (RPAPL) § I 351 ,

is granted; and it is further

ORDERED that the proposed Order submitted by plaintiff, as modified by the Court, is

signed simultaneously herewith; and it is further

ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this

Order pursuant to 22 NYCRR §202.5-b(h)(2).

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FILED: SUFFOLK COUNTY CLERK 01/13/2026 01:36 PM INDEX NO. 602779/2020

NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 01/13/2026

US Bank v Michalczyk

Index No. 602779/2020

Page 2

This is an action for foreclosure on real property situate in Farmingdale. Familiarity with this

Court's Memo Decision and Order dated July 17, 2025 (the "July Order") is presumed, wherein the

defendant Mildred Michalczy k's motion (#006) to reject the referee' s report was denied. The

Plaintiff's cross-motion (#007) for judgment of foreclosure and sale was adjourned, as Plaintiff was

directed submit to the Court evidentiary documentation supporting the amount due solely for

plaintiff's recovery period of six years preceding the commencement of the within action. The

requested documents were filed on August 29, 2025 and defendant Michalczyk filed a response

shortly thereafter. The motion was ultimately submitted for decision.

As part of its supplemental submission, the plaintiff has submitted an affidavit of Frank

Velazquez, Assistant Secretary of Nationstar Mortgage LLC (hereinafter, Nationstar) , attomey-in-

fact for the plaintiff herein, affirmed on August 27, 2025. Mr. Velasquez notes in the affidavit that

he has personal knowledge of Nationstar 's procedures, including how records are created and

maintained. He avers that the records are made at or near the time of the event by persons with

knowledge and are kept in the course of Nationstar' s ordinarily conducted business. He adds that

Nationstar relies on these records in its ordinary course of business. To the extent records were

created by a prior loan servicer, he notes that such have been integrated into Nationstar 's systems,

and are relied upon and now considered business records of Nationstar.

Annexed to the affidavit are copies of business records which reference the amounts due and

owing in the affidavit for principal, interest, property inspection and other charges to which the

plaintiff is entitled. Mr. Velasquez avers that Plaintiff seeks to collect only the installments which

are within six years of February 14, 2020, that is, back to February 14, 2014, and that all

installments prior thereto to have been waived 1•

The Court has reviewed Ms. Michalczy k's challenges to the affidavit, and finds such to be

of no merit. The Court finds that Mr. Valesquez' s affidavit demonstrated his knowledge and

establishes the admissibility of the information averred to and documents appended to the affidavit

as business records, comports with the dictates of Bank of NY Mellon v Gordon, 171 AD3d 197,

97 NYS3d 286 (2d Dept 2019), and satisfies the admissibility requirements of CPLR 4518(a). The

Defendant has failed to submit any proof to the contrary (see Wilmington Sav. Fund Socy., FSB

v He/al, 211 AD3d 991, 992, 181 NYS3d 306, 307 [2d Dept 2022] , citing Wells Fargo Bank, N.A.

v Yesmin, 186 AD3d 1761, 1762, 129 NYS3d 851, 852 [2d Dept 2020] [internal quotation marks

omitted];C enlarFSB vG/auber, 188AD3d 1141, 1143-44, 137NYS3 d418,420 -21 [2dDept

2020]; Citimortgage, Inc. v Kidd, 148 AD3d 767, 768 , 49 NYS3d 482,484 [2d Dept 2017]).

1As the business records demonstrate, the plaintiff made total tax advances in the amount of$ 128,369 .33 ,

however, Mr. Yelazquez's affidavit seeks to recover $119,013 .51 , which does not include two property tax

payments made on the defendant's behalf in 2013. Likewise, the business records demonstrate that the plaintiff made

total hazard insurance advances in the amount of $32 ,518 .00, while Mr. Velazquez's affidavit seeks to recover

$30,650.00 which does not include one payment made on the defendant' s behalf in 2013.

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[* 2]

FILED: SUFFOLK COUNTY CLERK 01/13/2026 01:36 PM INDEX NO. 602779/2020

NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 01/13/2026

US Bank v Michalczyk

Index No. 602779/2020

Page 3

"[T]he court ... remains the ultimate arbiter of the dispute" ( U.S. Bank N.A. v Barton , 207

AD3d 496,497, 169 NYS3d 523 [2d Dept 2022] citing Citimortgage, Inc. v Kidd, 148 AD3d 767,

768, 49 NYS3d 482 [2d Dept 2017]; HSBC Bank USA, N.A. v. Sharon, 202 AD3d 764, 158

NYS3d 834 [2d Dept 2022]).

The portion of plaintiff's motion seeking attorney's fees is granted, as the terms of the

subject loan documents allow for same. Here, plaintiff has supplied the Court with an affirmation

of services requesting $24,167.50, which includes the customary flat fee of $6,800.00 together with

litigation fees of $17,367.50, representing more than 50 hours of litigation work incurred. The Court

finds this amount to be reasonable given the extent of litigation, and will award plaintiff same (see

Vigo v 501 Second Street Holding Corp., 121 AD3d 778, 994 NYS2d 354 [2d Dept 2014]).

The Court, therefore, grants plaintiff's motion (#007) and simultaneously signs the proposed

Judgment, as modified.

Dated:

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