Deutsche Bank Nat'l Trust Co. v. Feeney

188 A.D.3d 997

137 N.Y.S.3d 405

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Colleen FEENEY, appellant, et al., defendants.

2018–05959

Index No. 2934/13

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 19, 2020

November 18, 2020

Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Morgan R. McCord of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

DECISION & ORDER

ORDERED that the judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Colleen Feeney, to strike her answer, and for an order of reference are denied, and the order dated October 3, 2016, is modified accordingly.

On September 14, 2005, the defendant Colleen Feeney (hereinafter the defendant) executed a note in the amount of $384,000, secured by a mortgage on real property located in Deer Park. On March 24, 2010, the defendant signed a Home Affordable Modification Agreement, which reduced her monthly mortgage payments (hereinafter the HAMP Mortgage).

In January 2013, the plaintiff commenced the instant action to foreclose the mortgage, alleging, inter alia, that the defendant had defaulted under the HAMP mortgage in or about April 2012. The defendant answered the complaint. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The defendant opposed the plaintiff's motion, contending, among other things, that the plaintiff had failed to comply with RPAPL 1304.

By order dated October 3, 2016, the Supreme Court granted the plaintiff's motion and appointed a referee. On October 29, 2018, the court entered an order and judgment of foreclosure and sale, among other things, directing the sale of the subject property. The defendant appeals from the order and judgment of foreclosure and sale.

We disagree with the Supreme Court's determination that the plaintiff established prima facie its compliance with RPAPL 1304. That statute provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower ..., including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower" ( RPAPL 1304[1] ). Notice must be sent both "by registered or certified mail and also by first-class mail" ( RPAPL 1304[2] ). " ‘[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Wells Fargo Bank, N.A. v. Trupia, 150 A.D.3d 1049, 1050, 55 N.Y.S.3d 134, quoting Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 106, 923 N.Y.S.2d 609 ). "Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" ( Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1016, 76 N.Y.S.3d 182 ).

Here, the plaintiff failed to submit an affidavit from a witness who attested to having personal knowledge of either the actual mailing or "a standard office mailing procedure designed to ensure that items are properly addressed and mailed" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 21, 98 N.Y.S.3d 273 [internal quotation marks omitted]; Wells Fargo Bank, NA v....