JP Morgan Chase v. Twersky

202 A.D.3d 769

158 N.Y.S.3d 885 (Mem)

JP MORGAN CHASE, etc., appellant,

v.Esther TWERSKY, respondent, et al., defendants.

2017–04268

Index No. 32760/08

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

Argued—November 5, 2021

February 9, 2022

Gross Polowy, LLC, Williamsville, NY (Stephen J. Vargas of counsel), for appellant.

Lambert & Shackman, PLLC, New York, NY (Thomas C. Lambert of counsel), for respondent.

HECTOR D. LASALLE, P.J., COLLEEN D. DUFFY, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated January 27, 2017. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Esther Twersky, to strike her answer, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2006, in exchange for a loan that she received, the defendant Esther Twersky (hereinafter the defendant) executed a note in which she promised to repay $960,000. The note was secured by a mortgage on a three-family dwelling in Brooklyn. On or about December 4, 2008, the plaintiff commenced this action to foreclose the mortgage. The plaintiff subsequently moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The Supreme Court denied those branches of the motion on the ground that the plaintiff failed to provide sufficient evidence that the defendant had defaulted in making payment on the loan. We affirm, albeit on a different ground.

"[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. Alternatively, the plaintiff bears the burden of establishing, prima facie, that RPAPL 1304 is inapplicable, as the loan is not subject to the notice requirements set forth in RPAPL 1304" ( U.S. Bank Trust, N.A. v. Sadique, 178 A.D.3d 984, 985, 114 N.Y.S.3d 398 [citations and internal quotation marks omitted]; see U.S. Bank N.A. v. Powell, 187 A.D.3d 1238, 1240, 131 N.Y.S.3d 558 ).

At the time this action was commenced, RPAPL 1304 provided, as relevant, that a 90–day preforeclosure notice was required with respect to "a high-cost home loan, as such term is defined in section six-l of the banking law, a subprime home loan or a non-traditional home loan" (RPAPL former 1304[1]; see L 2008, ch 472, § 2). The statute, as then in effect, defined a "home loan" as a mortgage loan in which "[t]he principal amount of the loan at origination did not exceed the conforming loan size that was in existence at the time of origination for a comparable dwelling as established by the federal national mortgage association" (RPAPL former 1304[5][b]; see L 2008, ch 472, § 2). Banking Law § 6–l(1)(e) defines a "home loan" as, a mortgage loan in which, among other things, "[t]he principal amount of the loan at origination does not exceed the conforming loan size limit (including any applicable special limit for jumbo mortgages) for a comparable dwelling as established from time to time by the federal national mortgage association" ( Banking Law § 6–l[1][e][i] ).

Here, the plaintiff failed to establish...