Green Tree Servicing v. Helmsorig

212 N.Y.S.3d 668

227 A.D.3d 1053

GREEN TREE SERVICING, LLC, respondent,

v.Donna HELMSORIG, etc., appellant, et al., defendants.

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

Argued—January 2, 2024

May 29, 2024

Christopher Thompson, West Islip, NY, for appellant.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Samantha Sandler of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., PAUL WOOTEN, CARL J. LANDICINO, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Donna Helmsorig appeals from two orders of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), both dated December 3, 2021. The first order, insofar as appealed from, granted those branches of the plaintiff’s renewed motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference. The second order, insofar as appealed from, granted the same relief to the plaintiff and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that the orders are reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the plaintiff’s renewed motion which were for summary judgment on the complaint insofar as asserted against the defendant Donna Helmsorig and for an order of reference are denied.

In 2006, William Helmsorig, Jr., now deceased (hereinafter the decedent), together with his wife, the defendant Donna Helmsorig (hereinafter the defendant), executed a note in favor of Mortgage Bankers Corp. in order to finance the purchase of certain property in Islip Terrace (hereinafter the property). On the same date, the decedent and the defendant executed a mortgage securing the note and encumbering the property.

In May 2013, the plaintiff, as the alleged holder of the note and mortgage, commenced this action to foreclose the mortgage against, among others, the defendant. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated July 23, 2018, the Supreme Court, among other things, denied those branches of the plaintiff’s motion with leave to renew within 120 days of the order, determining, inter alia, that the plaintiff failed to establish, prima facie, its compliance with RPAPL 1304. Thereafter, the plaintiff filed a renewed motion, among other things, for summary judgment. In an order dated December 3, 2021, the court, inter alia, granted those branches of the plaintiff’s renewed motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In a separate order, also dated December 3, 2021, the court, among other things, granted the same relief to the plaintiff and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. The defendant appeals from the orders dated December 3, 2021.

[1, 2] "Strict compliance with RPAPL 1304 notice to 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. Yapkowitz, 199 A.D.3d 126, 131–132, 155 N.Y.S.3d 163 [citations and internal quotation marks omitted]). Pursuant to RPAPL 1304(1), "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "RPAPL 1304(2) requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower and to the residence that is the subject of the mortgage" (Caliber Home Loans, Inc. v. Weinstein, 197 A.D.3d 1232, 1236, 153 N.Y.S.3d 575). "A plaintiff demonstrates its compliance with the statute ‘by proof of the requisite mailing, which can be established [by] 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’ " (U.S. Bank N.A. v. Pickering–Robinson, 197 A.D.3d 757, 759, 153 N.Y.S.3d 179, quoting Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 21, 98 N.Y.S.3d 273).

[3, 4] Contrary to the plaintiff’s contention, the defendant was entitled to notice pursuant to RPAPL 1304 as a "borrower" within the meaning of that statute. Although the defendant did not sign the subject note, she executed the mortgage as "Borrower" and is a title owner of the property. " ‘Where, as here, a homeowner defendant is referred to as a "borrower" in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a ‘borrower’ for the purposes of RPAPL 1304, notwithstanding … any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured’ " (HSBC Bank USA, N.A. v. Kalenborn, 215 A.D.3d 930, 932, 188 N.Y.S.3d 566, quoting Deutsche Bank Natl. Trust Co. v. Weininger, 206 A.D.3d 882, 883, 171 N.Y.S.3d 130; see Bank of N.Y. Mellon v. Forman, 176 A.D.3d 663, 665–666, 110 N.Y.S.3d 136). Here, since the defendant "signed the mortgage as a ‘borrower and, in that capacity, agreed to pay the amounts due under the note, she was entitled to … notice pursuant to RPAPL 1304" (Deutsche Bank Natl, Trust Co. v. Weininger, 206 A.D.3d at 884, 171 N.Y.S.3d 130).

[5] Furthermore, the plaintiff failed to establish, prima facie, its strict compliance with ...