An appeals court has declined to rule on a trial judge's suggestion that Chief Judge Jonathan Lippman's foreclosure affirmation mandate violates the state Constitution. A unanimous panel of the Appellate Division, Second Department, ruled yesterday that a bank can proceed with a foreclosure action in the face of Suffolk County Supreme Court Justice Thomas Whelan's (See Profile) comments questioning the validity of the affirmation, which requires attorneys to vouch for the accuracy of bank documents they submit (NYLJ, March 9, 2011).
Linda and James Pace, the homeowners fighting foreclosure in LaSalle Bank v. Pace, 2011-03219, argued that the affirmation was constitutional and, in this case, was submitted late. However, the appeals panel concluded the affirmation was on time. "The Paces' remaining contention involves dicta and, in any event, is academic in light of our determination," said the panel of Justices Mark Dillon (See Profile), Ruth Balkin (See Profile), John Leventhal (See Profile) and L. Priscilla Hall (See Profile), which heard oral arguments on Sept. 24 (NYLJ, Sept. 26).