U.S. Bank Nat'l Ass'n v. Thomas

211 A.D.3d 1078

182 N.Y.S.3d 163

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Rosemarie THOMAS, etc., appellant, et al., defendants.

2018–03905

Index No. 701726/15

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

Argued—September 6, 2022

December 28, 2022

James Jantarasami, New York, NY, for appellant.

LOGS Legal Group (Reed Smith LLP, New York, NY [Andrew B. Messite and Brenda Beauchamp Ward ], of counsel), for respondent.

HECTOR D. LASALLE, P.J., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Rosemarie Thomas appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Allan B. Weiss, J.), entered March 6, 2019. The order and judgment of foreclosure and sale, upon an order of the same court entered January 29, 2018, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Rosemarie Thomas, to strike that defendant's answer and affirmative defenses, and for an order of reference, granted the plaintiff's unopposed motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the appeal from the order and judgment of foreclosure and sale is dismissed, except insofar as it brings up for review the order entered January 29, 2018, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Rosemarie Thomas, to strike that defendant's answer and affirmative defenses, and for an order of reference; and it is further,

ORDERED that the order and judgment of foreclosure and sale is reversed insofar as reviewed, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Rosemarie Thomas, to strike that defendant's answer and affirmative defenses, except for the affirmative defense alleging lack of standing, and for an order of reference are denied, and the order entered January 29, 2018, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The plaintiff commenced this action against, among others, the defendant Rosemarie Thomas (hereinafter the defendant) to foreclose a mortgage encumbering certain real property located in Queens. The defendant interposed an answer asserting various affirmative defenses, including the plaintiff's lack of standing and failure to comply with RPAPL 1304. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer and affirmative defenses, and for an order of reference. The defendant opposed the motion and cross-moved for leave to serve and file an amended answer asserting additional affirmative defenses. In an order entered January 29, 2018, the Supreme Court, among other things, granted the plaintiff's motion, denied the defendant's cross motion, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff on the mortgage loan. In an order and judgment of foreclosure and sale entered March 6, 2019, the court, upon the order entered January 29, 2018, granted the plaintiff's unopposed motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals, arguing that the plaintiff lacks standing and that it failed to establish its compliance with RPAPL 1304. The defendant does not challenge the court's denial of her cross motion for leave to serve and file an amended answer asserting additional affirmative defenses.

RPAPL 1304(1) 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." "The statute further 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" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 20, 98 N.Y.S.3d 273 ; see RPAPL 1304[2] ). Strict compliance with RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action (see Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 20, 98 N.Y.S.3d 273 ;...