Deutsche Bank Nat'l Trust Co. v. Loayza

204 A.D.3d 753

166 N.Y.S.3d 654

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Ricardo M. LOAYZA, et al., appellants, et al., defendant.

2019–04037, 2019–04038

Index No. 15356/13

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

Argued—December 10, 2021

April 13, 2022

R. David Marquez, P.C., Mineola, NY, for appellants.

Greenberg Traurig, LLP, New York, NY (Marissa Banez of counsel), for respondent.

COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Ricardo M. Loayza and Aby Montanez appeal from (1) a decision of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered December 20, 2018, and (2) an order of the same court entered December 20, 2018. The order, insofar as appealed from, upon the decision, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against those defendants, to strike their answer and affirmative defenses, and for an order of reference, and denied those defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Ricardo M. Loayza and Aby Montanez, to strike those defendants’ answer and affirmative defenses, and for an order of reference are denied, and the cross motion of the defendants Ricardo M. Loayza and Aby Montanez for summary judgment dismissing the complaint insofar as asserted against them is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendants Ricardo M. Loayza and Aby Montanez.

In December 2013, the plaintiff commenced this action against the defendants Ricardo M. Loayza and Aby Montanez (hereinafter together the defendants), among others, to foreclose a mortgage on residential property in Baldwin. The defendants interposed an answer asserting, inter alia, an affirmative defense that the plaintiff failed to comply with the notice requirements of RPAPL 1304.

In June 2018, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer and affirmative defenses, and for an order of reference. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff failed to comply with the notice requirements of RPAPL 1304. In an order entered December 20, 2018, the Supreme Court granted the plaintiff's motion and denied the defendants’ cross motion. The defendants appeal. We reverse.

RPAPL 1304 requires 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 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 id. § 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 Bank of N.Y. Mellon v. Porfert, 187 A.D.3d 1110, 1112, 134 N.Y.S.3d 57 ; Citimortgage, Inc. v. Banks, 155 A.D.3d 936, 936–937, 64 N.Y.S.3d 121 ), "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 ).

Here, the plaintiff failed to establish its strict compliance with RPAPL 1304. Although the plaintiff demonstrated that it mailed the RPAPL 1304 notice to the defendants by both certified and first-class mail (see Ocwen Loan Servicing LLC v. Siame, 185 A.D.3d 408, 409, 124 N.Y.S.3d 789 ), and that the contents of the notice complied with RPAPL 1304(1), the plaintiff failed to establish that it sent a 90–day notice individually addressed to each defendant in separate envelopes, as required by the statute (see Wells Fargo Bank, N.A. v. Yapkowitz, 199 A.D.3d 126, 155 N.Y.S.3d 163 ). Instead, as the plaintiff concedes, the notice was mailed in a single envelope jointly to both defendants.

Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to...