U.S. Bank v. Nahum

2024 NY Slip Op 05581

U.S. Bank National Association, respondent, v. Milene Nahum, appellant, et al., defendants.

Nos. 2020-01399, 2020-01400, Index No. 512110/14

Supreme Court of New York, Second Department

November 13, 2024

Law Offices of Morris Fateha, P.C. (Mischel & Horn, P.C., New York, NY [Scott T. Horn], of counsel), for appellant.

Woods Oviatt Gilman, LLP, Rochester, NY (David Wildermuth of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, CARL J. LANDICINO, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Milene Nahum appeals from two orders of the Supreme Court, Kings County (Noach Dear, J.), both dated September 4, 2019. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike her answer and affirmative defenses, and for an order of reference. The second order, insofar as appealed from granted the same relief to the plaintiff and appointed a referee to 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 motion which were for summary judgment on the complaint insofar as asserted against the defendant Milene Nahum, to strike her answer and affirmative defenses, and for an order of reference are denied.

The plaintiff commenced this action against, among others, the defendant Milene Nahum (hereinafter the defendant) to foreclose a consolidated mortgage on certain real property located in Brooklyn. The defendant interposed an answer in which she asserted, as an affirmative defense, inter alia that the plaintiff failed to provide certain required notices before commencing this action. The plaintiff moved, among other things, 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. By order dated September 4, 2019, the Supreme Court, inter alia granted those branches of the plaintiff's motion. In a second order dated September 4, 2019, the court, among other things, granted the same relief to the plaintiff and appointed a referee to compute the amount due to it. The defendant appeals from both orders.

"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" (Deutsche Bank Natl. Trust Co. v Palomaria, __ A.D.3d __, __, 2024 NY Slip Op 04374, *1 [2d Dept]; see U.S. Bank N.A. v McQueen, 221 A.D.3d 1049, 1050). 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'" (Deutsche Bank Natl. Trust Co. v Palomaria, __ A.D.3d at __, 2024 NY Slip Op 04374, *1, quoting Caliber Home Loans, Inc. v Weinstein, 197 A.D.3d 1232, 1236). "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, quoting Citibank, N.A. v Conti-Scheurer, 172 A.D.3d 17, 21; see Caliber Home Loans, Inc. v Weinstein, 197 A.D.3d at 1236).

Here the plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304. To that end, the plaintiff submitted an affidavit of Sarah L. Stonehocker, a vice president of loan documentation employed by the plaintiff's loan servicer, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), with attachments, which were insufficient to establish compliance with RPAPL 1304. While Stonehocker averred that she had personal knowledge of Wells Fargo's business records and that, according to the business records she reviewed, 90-day notices were served via certified and first-class mail at the...