At a Special Tenn of the Supreme Court of the State
ofNew York held in and for the Sixth Judicial
District at the Tioga County Courthouse, Owego,
New York, on the 27th day of April, 2015.

PRESENT: HON. EUGENE D. FAUGHNAN
Justice Presiding
ST A TE OF NEW YORK
SUPREME COURT: TIOGA COUNTY

Residential Funding Company, LLC,
Plaintiff,

-vs-

Christopher K. Lehman aka Chrisopher K. Lehman,
Citifinancial Services, Inc., United States of America
Acting through the IRS, John Doe (said name being
fictitious, it being the intention of Plaintiff to
designate any and all occupants of premises being
foreclosed herein, and any parties, corporations or
entities, if any having or claiming an interest or lien
upon the mortgaged premises.)
Defendants.

Factual Background

The current action was commenced on September 23, 2011 by the filing of a summons
and complaint. Plaintiffs complaint contends that Defendant executed a Mortgage and Note on
September 15, 2006, and that he has defaulted in payments on the loan. Defendant served an
Answer on 10/14/11 and an Amended Answer on 10/28/11, raising affirmative defenses of
Plaintiffs unclean hands, and Plaintiffs failure to comply with Real Property Actions and
Proceedings Law (“RP APL”) § 1304. Defendant’s Answer requested dismissal of Plaintiffs
Complaint.

A foreclosure settlement conference was held, and Plaintiff did not appear. Therefore, a
second foreclosure settlement conference was held and at the conclusion, Plaintiff was allowed to
proceed in its action.

In January, 2015, Plaintiff filed this motion. In support thereof, Plaintiff submitted an
Attorney Affirmation of Shan P. Massand dated January 23, 2015, regarding CPLR 3408
Settlement Conferences, a Certificate of Merit of Natalie Giraldo, Esq., dated January 23, 2015
and an Attorney Affirmation in Support from Shan P. Massand dated January 23, 2015 with
attached Exhibits. Plaintiff also included an Affidavit oflndebtedness from Thomas F. Kennedy,
dated July 17, 2013.

Defendant submitted an Affidavit of Charles Guttman, Esq., dated March 4, 2015, with
Exhibits, in opposition to the motion. Included in the opposing papers were a consent to
discontinue a prior foreclosure action on this property2
•
The matter was scheduled for oral argument on the motion on April 27, 2015. Plaintiff
did not appear, but Defendant was represented by Attorney Guttman. Following that argument,
the Court Reserved Decision on the motion

Discussion and Findings

Plaintiffs moving papers allege that Defendant has breached the terms of the Note and
Mortgage by failing to make required monthly payments from November, 2008 to the present. In
support of the motion, Plaintiff also submitted evidence that it had provided a 90 day notice to
Defendant, as required under RPAPL §1304. That notice was dated February 23, 2010.
However, Defendant argues that the February 23, 2010 notice was applicable to the earlier action,
which was ultimately discontinued, and that Plaintiff has not provided a new 90 days notice prior
to the commencement of the instant action on September 23, 2011.
RP APL § 1304 provides:

Notwithstanding any other provision of law, with regard to a home loan, 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 which shall
include the following:

“YOU COULD LOSE YOUR HOME. PLEASE READ THE FOLLOWING NOTICE
CAREFULLY”

“As of …….. , your home loan is…….. days in default. Under New York State Law, we are
required to send you this notice to inform you that you are at risk of losing your home.
You can cure this default by making the payment of…….. dollars by …….. .
RPAPL §1304(1).

Defendant contends that the earlier 90 day notice became ineffective when that case
was discontinued, and that a new notice was required. Defendant did not provide any citations
on this exact question, and the Court’s independent research did not reveal any New York cases
dealing directly with the issue. However, the Court finds the case of Wells Fargo Bank, NA. v.
Spivak, 2014 PA Super 250, 104 A.3d 7 (Sup. Ct. 2014) to be instructive. At issue in that case
was a provision in Pennsylvania law regarding pre-foreclosure notice requirements, and whether
a separate notice was required in a second action. The Court in Spivak concluded that a new
notice was required. The Pennsylvania law requires that the lender provide notice and state what
sum of money must be tendered to cure the default and the time within which the debtor must
cure the default. This language is nearly identical to the New York language quoted above, and
requires that the notice must state how much is required to be paid and by when. As noted by the
Court in Spivak, a second notice would be required if a second action is commenced, so that the
debtor could potentially cure the default. Here, the notice upon which Plaintiff relies is dated
February 23, 2010 and advises the borrower that he “can cure this default by making the payment
of 18058.24 by 05/24/2010.” That was sufficient notice to permit the Plaintiff to file the earlier
action. But once that action was discontinued, the Defendant would have to be entitled, once
again, to a 90 day notice. That notice would inform him of the amount needed, and time
permitted to cure the default. Clearly, by the time the second action was commenced, the amount
owed would have changed, and Defendant could not cure the default by 05/24/10 as that date had
passed. A new notice would be required to provide him with the correct information that could
cure his default.

The notice requirement under RP APL § 1304 is a condition precedent to bringing a
foreclosure action, and the party seeking the foreclosure has the burden to show compliance with
the notice requirement. Pritchard v. Curtis, 101 AD3d 1502 (3rd Dept. 2012); see Aurora Loan
Services, LLC v. Weisblum, 85 AD3d 95 (2″d Dept. 2011 ); see TD Bank, NA. v Leroy, 121 AD3d
1256 (3rd Dept. 2014). The Plaintiff claims that it has complied with RPAPL §1304. “Thus, in
support of its motion for summary judgment on the complaint, [the lender] was required to prove
its allegations by tendering sufficient evidence demonstrating the absence of material issues as to
its strict compliance with RP APL 1304, and failure to make this showing requires denial of the
motion, regardless of the opposing papers” Aurora Loan Servs., LLC, 85 AD3d at 106 [citation
omitted] ; TD Bank, NA., supra. The Defendant’s papers and evidence submitted in opposition
to Plaintiffs motion have at least raised material issues as to whether Plaintiff has complied with
RP APL § 1304.

Conclusion

Based upon the foregoing discuss ion, the Court finds that the Plaintiff has failed to
establish an entitlement to summary judgment on this record. Therefore, Plaintiff’s motion is
DENIED.

This constitutes the Decision and Order of the Court.
Dated: June23_, 20 1s
Owego, New York
-5-
[* 5]

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