Wells Fargo Bank, N.A. v. Davidson

202 A.D.3d 880

162 N.Y.S.3d 451

WELLS FARGO BANK, N.A., respondent,

v.Daniel A. DAVIDSON, et al., appellants, et al., defendants.

2019–05711

Index No. 31309/13

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

Submitted—November 30, 2021

February 9, 2022

The Law Offices of Charles Wallshein, PLLC, Melville, NY, for appellants.

Shapiro, DiCaro & Barak (Reed Smith, LLP, New York, NY [Michael V. Margarella and Andrew B. Messite ], of counsel), for respondent.

COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, SYLVIA O. HINDS–RADIX, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Daniel A. Davidson and Nina M. Davidson appeal from a judgment of foreclosure and sale of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), entered March 19, 2019. The judgment of foreclosure and sale, upon an order of the same court dated February 26, 2019, granting those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale, and denying those branches of the cross motion of the defendants Daniel A. Davidson and Nina M. Davidson which were for a referee's hearing pursuant to CPLR 4313 and RPAPL 1321 and, in effect, to vacate so much of two orders of the same court dated April 28, 2017, as granted those branches of the plaintiff's motion 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, confirmed the referee's report and directed the sale of the real property at issue.

ORDERED that the judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, that branch of the cross motion of the defendants Daniel A. Davidson and Nina M. Davidson which was, in effect, to vacate so much of the orders dated April 28, 2017, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them, to strike their answer and affirmative defenses, and for an order of reference is granted, and the orders dated February 26, 2019, and April 28, 2017, are modified accordingly.

In November 2013, the plaintiff commenced this action against the defendants Daniel A. Davidson and Nina M. Davidson (hereinafter together the defendants), among others, to foreclose a mortgage on residential property in Holtsville. The defendants interposed an answer in which they asserted various affirmative defenses and counterclaims.

In April 2015, 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 cross-moved, inter alia, for leave to amend their answer and to compel discovery. In an order dated April 28, 2017, the Supreme Court granted the plaintiff's motion and denied the defendants’ cross motion. In another order, also dated April 28, 2017, the court granted the plaintiff's motion and referred the matter to a referee to compute the amount due to the plaintiff.

Thereafter, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. The defendants then cross-moved, inter alia, for a referee's hearing pursuant to CPLR 4313 and RPAPL 1321 and, in effect, to vacate so much of the orders dated April 28, 2017, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them, to strike their answer and affirmative defenses, and for an order of reference, contending, among other things, that the plaintiff failed to demonstrate strict compliance with the service requirements of RPAPL 1304. In an order dated February 26, 2019, the court granted the plaintiff's motion and denied the defendants’ cross motion. Thereafter, the court entered a judgment of foreclosure and sale on March 19, 2019. 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 RPAPL 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...