Wells Fargo vs Kahya, Wells Fargo | NYSC - plaintiff failed to submit an affidavit of service evincing that it properly served the borrower pursuant to RP APL 1304

Categorized | STOP FORECLOSURE FRAUD

Wells Fargo vs Kahya, Wells Fargo | NYSC – Sues Itself…plaintiff failed to submit an affidavit of service evincing that it properly served the borrower pursuant to RP APL 1304

Wells Fargo vs Kahya, Wells Fargo | NYSC – Sues Itself…plaintiff failed to submit an affidavit of service evincing that it properly served the borrower pursuant to RP APL 1304

Wells Fargo sues itself!

Conflict anyone?

SUPREME COURT- STATE OF NEW YORK
I.A.S. PART 10 SUFFOLK COUNTY

WELLS FARGO BANK, N.A.,
3476 Stateview Boulevard
Ft. Mill, SC 29715,
Plaintiff,

-against-

A YSE KAHY A, WELLS FARGO BANK, N.A.,
MR. KAHY A and YILMAZ KAHY A,
Defendants.

EXCERPT:

A plaintiff in a mortgage foreclosure action establishes a prima facie case for summary
judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see,
Valley Natl. Bank v Deutsch, 88 A.D.3d 691, 930 N.Y.S.2d 477 [2d Dept. 2011]; Wells Fargo
Bank v Das Karla, 71A.D.3d1006, 896 N.Y.S.2d 681 [2d Dept. 2010]; Washington Mut. Bank,
F.A. v O’Connor, 63 A.D.3d 832, 880 N.Y.S.2d 696 [2d Dept. 2009]). The burden then shifts to
the defendant to demonstrate “the existence of a triable issue of fact as to a bona fide defense to the
action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the
part of the plaintiff’ (Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 A.D.3d 882,
883, 895 N. Y.S.2d 199 [2d Dept. 201 O], quoting Mahopac Natl. Bank v Baisley, 244 A.D.2d 466,
467, 644 N.Y.S.2d 345 [2d Dept. 1997]).

In addition, “proper service of RP APL § 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” (Aurora Loan Servs., LLC, 85 A.D.3d at 106, 923
N.Y.S.2d 609).

The fourth affirmative defense and the affirmation in opposition to the motion assert that the
plaintiff failed to comply with the mortgage foreclosure notice provisions required by RP APL §
1304. RP APL 1304 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 in at least fourteen-point
type” (RP APL 1304[ 1] ). RP APL 1304 sets forth the requirements for the content of such notice
(see RP APL 1304[1] ), and further provides that such notice must be sent by registered or certified
mail, and also by first-class mail, to the last known address of the borrower (see RP APL 1304[2]).
RPAPL § 1304 currently applies to any “home loan,” as defined in RPAPL 1304(5)(a).

RPAPL § 1304(5)(a) defines a “home loan” in pertinent part as “a loan … in which … (I) [t]he
borrower is a natural person; (ii)[t]he debt is incurred by the borrower primarily for personal family,
or household purposes; [and] (iii) “[t]he loan is secured by a mortgage … on real estate improved by
a one to four family dwelling … used or occupied, or intended to be used or occupied wholly or
partly, as the home or residence of one or more persons and which is or will be occupied by the
borrower as the borrower’s principle dwelling.” Notwithstanding the use of the singular, there may
be more than one “borrower” on a “home loan” (see Aurora Loan Services v. Weisblum, 85 A.D.3d
at 105).

Further, when the statute was first enacted, and when this action was commenced, it applied
only to ”high cost,” “subprime,” and “non-traditional” home loans (Aurora Loan Servs., LLC v.
Weisblum, 85 A.D.3d at 104, [citing L. 2008, ch. 472, § 2] ). The moving papers fail to address
whether the subject loan was a “high cost,” “subprime,” or “non-traditional” home loan when made.
“[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” or that service of the notice was not required under the
version of the statute that was in effect at the time the action was commenced (Aurora Loan Servs.,
LLC, 85 A.D.3d at 106, 923 N.Y.S.2d 609).

Here, the plaintiff failed to submit an affidavit of service evincing that it properly served the
borrower pursuant to RP APL 1304, or in the alternative, demonstrate that the subject loan was not
a “high cost,” “subprime,” or “non-traditional” home loan to which the former version of RP APL
§ 1304 applied (see id.). Thus, the plaintiff failed to meet its prima facie burden of establishing its
entitlement to judgment as a matter of law in connection with the fourth affirmative defense (see
Aurora Loan Servs., LLC, 85 A.D.3d at 106, 923 N. Y.S.2d 609; see also Deutsche Bank Nat. Trust
Co. v. Spanos, 102 A.D.3d 909, 911, 961N.Y.S.2d200 [2d Dept. 2013]).
Since on the motion for summary judgment the plaintiff did not argue that the defendant did
not reside at the subject premises when the action was commenced, and the pre-foreclosure notice
requirement of RP APL § 1304 only applies to statutorily defined “home loans”, and further, since
the defendant did not have an opportunity to address that issue in opposing the motion, the Court
likewise declines to address it here.

Accordingly, that branch of the plaintiffs motion which is for summary judgment dismissing
the fourth affirmative defense alleging that the plaintiff failed to comply with RP APL 1304 is
denied, without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v. New
York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). The denial is
without prejudice to renew upon proper papers as indicated herein within one-hundred twenty days
of the date of this order. Any renewal shall include a copy of this Order and the supporting papers
on this application.

The remaining affirmative defenses numbered First through Third and Fifth through
Nineteenth are stricken. These affirmative defenses are not supported by any proof in admissible
form sufficient to raise a triable issue of fact. The opposition consisted solely of the affirmation of
the appointed Guardian Ad Litem and Military Attorney who has no personal knowledge of the facts
(see Zuckerman v City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]
[party opposing summary judgment may not rest upon mere allegations or denials, but must set forth
specific facts showing that there is a genuine issue of material fact for trial]). “Defenses which
merely plead conclusions of law without supporting facts are insufficient and should be stricken”
(see CPLR § 3018(b); see also Petracca v. Petracca, 305 A.D.2d 566, 567, 760 N.Y.S.2d 513 [2d
Dept. 2003]; Bruno v. Sant’Elia, 52 A.D.3d 556, 557, 860 N.Y.S.2d 589 [2d Dept. 2008]; Cohen
Fashion Optical, Inc. v. V & M Optical, Inc., 51A.D.3d619, 858 N.Y.S.2d 260 [2d Dept. 2008].

[…]

Down Load PDF of This Case

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Comments

comments

This post was written by:

- who has written 8609 posts on FORECLOSURE FRAUD | by DinSFLA.

CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

Contact the author

Leave a Reply

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Advertise your business on StopForeclosureFraud.com
Kenneth Eric Trent, www.ForeclosureDestroyer.com

Archives