- Court
- New York Supreme Court, Appellate Division, First Department
- Case
- Wells Fargo Bank, N.A. v. Whyte
- Date
- May 28, 2026
- Slip Op. No.
- 2026 NY Slip Op 03375
Background
In this mortgage foreclosure action, defendant Coleen Whyte, appearing pro se, moved to compel plaintiff Wells Fargo Bank, N.A. to produce evidence of its litigation counsel’s authority to represent the bank, and to strike counsel’s notice of appearance and request for a foreclosure settlement conference. Whyte argued that the bank’s attorneys lacked proper authorization to prosecute the foreclosure action. In response, the plaintiff submitted an affirmation from its loan servicer and attorney-in-fact affirming that it had retained litigation counsel as co-counsel. The Supreme Court, Bronx County, denied Whyte’s motion as moot given the servicer’s affirmation. Whyte appealed.
Holding
The Appellate Division unanimously affirmed the denial of the motion. The Court held that the affirmation from the plaintiff’s loan servicer and attorney-in-fact was sufficient to establish litigation counsel’s authority to represent the plaintiff in the foreclosure action. The affirmation satisfied the requirements of CPLR 2106 and did not require notarization because it was made under the penalties of perjury. The Court found that Whyte’s challenge to counsel’s authority was properly denied as moot once the plaintiff provided the requisite proof of the attorney-client relationship.
Takeaways
A loan servicer’s affirmation under CPLR 2106, made under the penalties of perjury, is sufficient to establish the authority of litigation counsel to represent a plaintiff bank in a foreclosure action. Notarization is not required for affirmations made under CPLR 2106. Pro se defendants who challenge litigation counsel’s authority must recognize that the challenge can be mooted by the submission of proper proof of authorization, and that an affirmation from the servicer acting as attorney-in-fact satisfies this requirement.
Why It Matters
This decision addresses a common defense tactic in foreclosure litigation, particularly among pro se defendants, of challenging the authority of the bank’s attorneys to prosecute the action. The ruling confirms that such challenges can be readily resolved through the submission of an affirmation from the loan servicer or attorney-in-fact establishing the retention of counsel. Foreclosure plaintiffs should be prepared to produce such documentation promptly when challenged, while pro se defendants should understand that challenges to attorney authority are unlikely to delay the proceedings significantly once proper documentation is provided.