Deutsche Bank Nat'l Trust Co. v. Dennis

181 A.D.3d 864

122 N.Y.S.3d 95

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent,

v.Paulette Angela DENNIS, etc., Appellant, et al., Defendant.

2016–10408

Index No. 30405/10

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

Argued - November 8, 2019

March 25, 2020

Harvey Sorid, Uniondale, NY, for appellant.

Houser LLP, New York, N.Y. (Kathleen M. Massimo and David A. Smetana of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Paulette Angela Dennis appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered August 23, 2016. The order, insofar as appealed from, (1) upon renewal, in effect, vacated a prior determination in an order of the same court entered April 1, 2014, denying those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against the defendant Paulette Angela Dennis, to strike that defendant's answer, and for an order of reference, and, thereupon, granted those branches of the plaintiff's prior motion, (2) denied that defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against her, and (3) referred the matter to a referee to compute the amount due to the plaintiff.

ORDERED that the order entered August 23, 2016, is modified, on the law, (1) by deleting the provision thereof, upon renewal, in effect, vacating the prior determination in the order entered April 1, 2014, denying those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against the defendant Paulette Angela Dennis, to strike that defendant's answer, and for an order of reference, and, thereupon, granting those branches of the plaintiff's prior motion, and substituting therefor a provision, upon renewal, adhering to the prior determination in the order entered April 1, 2014, and (2) by deleting the provision thereof referring the matter to a referee to compute the amount due to the plaintiff; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Paulette Angela Dennis.

In December 2010, the plaintiff commenced this action to foreclose a mortgage given by the defendant Paulette Angela Dennis (hereinafter the defendant) to secure a loan in the amount of $500,000. The defendant answered the complaint and raised various affirmative defenses, including lack of standing, failure to comply with RPAPL 1304, and failure to comply with a condition precedent set forth in the subject mortgage agreement requiring that the plaintiff provide the defendant with a notice of default prior to accelerating the loan. 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. In an order entered April 1, 2014, the Supreme Court denied the motion, concluding that the plaintiff had not established, prima facie, its standing.

Thereafter, the plaintiff moved for leave to renew its prior motion, and the defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against her. In an order entered August 23, 2016, the Supreme Court granted leave to renew. Upon renewal, the court, inter alia, granted those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The court also denied the defendant's cross motion. The defendant appeals.

The Supreme Court, upon renewal, should have adhered to its prior determination denying those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The evidence submitted by the plaintiff failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304, that it complied with the condition precedent in paragraph 22 of the mortgage agreement, or that it had standing to commence this foreclosure action.

RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer must give notice to the borrower. The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304[2] ). "Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action" ( Citibank, N.A. v. Conti–Scheurer , 172 A.D.3d 17, 20, 98 N.Y.S.3d 273 ; see Citimortgage, Inc. v. Banks , 155 A.D.3d 936, 936–937, 64 N.Y.S.3d 121 ; HSBC Bank USA, N.A. v. Ozcan , 154 A.D.3d 822, 825–826, 64 N.Y.S.3d 38 ), "and the plaintiff has the burden of establishing satisfaction of this condition" ( Aurora Loan Servs., LLC v. Weisblum , 85 A.D.3d 95, 106, 923 N.Y.S.2d 609 ). "By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be 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" ( Citibank, N.A. v. Conti–Scheurer , 172 A.D.3d at 20–21, 98 N.Y.S.3d 273 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co. , 25 N.Y.3d 498, 508–509, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; Bank of Am., N.A. v. Bittle , 168 A.D.3d 656, 658, 91 N.Y.S.3d 234 ; 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 of mailing or proof of mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304. Instead, the plaintiff relied on an affidavit of Rashad Blanchard, who was employed as a loan analyst by the parent company of the plaintiff's loan servicer, and copies of the purported notices. The plaintiff submitted only one letter that purported to constitute the statutorily required 90–day notice of default, dated December 22, 2008. Although the letter contained the statement "sent via certified mail," with a 20–digit number below it, no receipt or corresponding document issued by the United States Postal Service was submitted proving that the letter was actually sent by certified mail more than 90 days prior to commencement of the action. The plaintiff also failed to submit any documentary evidence that notice was sent by first-class mail. Further, Blanchard did not aver that the notice was sent in the manner required pursuant to RPAPL 1304, i.e., by certified mail and first-class mail. Moreover, since he did not aver that he personally mailed the notice, or that he was familiar with the mailing practices and procedures of American Home Mortgage Servicing, Inc., the entity that purportedly sent the notices, he did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (see U.S. Bank N.A. v. Offley, 170 A.D.3d 1240, 1242, 97 N.Y.S.3d 307 ; U.S. Bank N.A. v. Henderson, 163 A.D.3d 601, 603, 81 N.Y.S.3d 80 ; Bank of Am., N.A. v. Wheatley, 158 A.D.3d 736, 738, 73 N.Y.S.3d 88 ).

Since the plaintiff failed to provide evidence of the actual mailing by either certified mail or first-class mail, "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 ... the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 21, 98 N.Y.S.3d 273 [citations and internal quotation marks omitted]; see JPMorgan Chase Bank, N.A. v. Grennan, 175 A.D.3d 1513, 1518, 109 N.Y.S.3d 436 ; U.S. Bank N.A. v. Cope, 175 A.D.3d 527, 107 N.Y.S.3d 104 ). For the same reasons, Blanchard's affidavit, together with a copy of the purported 30–day notice required by the terms of the mortgage agreement, also "failed to establish that the required notice was mailed to the defendant by first-class mail or actually delivered to her ‘notice address’ if sent by other means, as required by the ... mortgage [agreement]" ( LNV Corp. v. Sofer, 171 A.D.3d 1033, 1037, 98 N.Y.S.3d 302 ; see JPMorgan Chase Bank, N.A. v. Grennan, 175 A.D.3d at 1518, 109 N.Y.S.3d 436 ; Emigrant Bank v. Myers, 147 A.D.3d 1027, 1028, 47 N.Y.S.3d 446 ).

In an action to foreclose a mortgage, where, as here, the plaintiff's standing has been placed in issue by the defendant's answer, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment (see Deutsche Bank Natl. Trust Co. v. Kingsbury, 171 A.D.3d 871, 872, 95 N.Y.S.3d 893 ; JPMorgan Chase Bank, N.A. v. Rosa, 169 A.D.3d 887, 889, 94 N.Y.S.3d 602 ; U.S. Bank N.A. v. Greenberg, 168 A.D.3d 893, 894, 91 N.Y.S.3d 459 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Nationstar Mtge., LLC v. Rodriguez, 166 A.D.3d 990, 992, 89 N.Y.S.3d 205 ; Central Mtge. Co. v. Jahnsen, 150 A.D.3d 661, 663, 56...