U.S. Bank Natl. Assoc. v Nevers | NYSC - did not demonstrate that it complied with the condition precedent contained in the subject mortgage agreement...failed to supply adequate evidcntiary proof of compliance with RP APL§ l 304

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U.S. Bank Natl. Assoc. v Nevers | NYSC – did not demonstrate that it complied with the condition precedent contained in the subject mortgage agreement…failed to supply adequate evidcntiary proof of compliance with RP APL§ l 304

U.S. Bank Natl. Assoc. v Nevers | NYSC – did not demonstrate that it complied with the condition precedent contained in the subject mortgage agreement…failed to supply adequate evidcntiary proof of compliance with RP APL§ l 304

SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
I.A.SPART 9 – SUFFOLK COUNTY
INDEX NO.: 39134-11
PRESENT:
Hon. DANIEL MARTIN
MOTION DATE: 10-29-14
~—————————-

U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR BANC OF AMERICA FUNDING
2007-6 TRUST
Plaintiff,

-against-

MICHAEL NEVERS NKJA MICHAEL G. NEVERS
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., AS NOMINEE FOR MORTGAGEIT
INC.
Defendants.

The following named papers have been read on this motion:
Notice of Motion for Summary Judgment and an Order of Reference
Cross-Motion
Answering Affidavits
Replying Affidavits
60 Seaman A venue, 4 E
New York, N. Y. 10034

ORDERED that this motion (001) by the plaintiff for, inter alia, an order awarding summary
judgment in its favor and against the defendant Michael Nevers, fixing the defaults of the non-answering
defendants, appointing a referee and amending the caption is denied in its entirety; and it is further
ORDERED that the plaintiff is directed to serve a copy of this order with notice of entry upon all
parties who have appeared herein and not waived further notice within thirty (30) days of the date herein,
and to promptly file the affidavits of service with the Clerk of the Court.
[* 1]

This is an action to foreclose a mortgage on real property known as 501 Fulton Place. West
Babylon. New York 11704 (“the property”). On March 28, 2007, the defendant Michael Nevers (“the
answering defendant”) executed a fixed-rate note in favor of Mortgage it, Inc. (”the lender”) in the principal
sum of$363,250.00. To secure said note, the answering defendant gave the lender a mortgage also dated
March 28, 2007 on the property. The mortgage, which was recorded on September l 0, 2007, indicates that
Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for the lender and
its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee
of record. By way of an undated endorsement and an allonge, the note was allegedly transferred to US
Bank National Association, as Trustee for Banc of America Funding 2007-6 Trust (“the plaintiff’). The
transfer of the note to the plaintiff was memorialized by an assignment of the mortgage, which was
subsequently duly recorded in the Suffolk County Clerk’s Office. Thereafter, another assignment of the
mortgage was executed in favor of the plaintiff, whereby the plaintiff’s address set forth therein was
corrected. This assignment was also duly recorded in the Suffolk County Clerk’s Office.

The answering defendant allegedly defaulted on the note and mortgage by failing to make the
monthly payment of principal and interest due on November I, 2009, and each month thereafter. The
plaintiff allegedly provided the answering defendant with notice of his default by two separate documents
each dated August 14, 2011. After the answering defendant allegedly failed to cure said default, the
plaintiff commenced the instant action by the filing of a lis pendens, summons and complaint on December
27. 2011. Thereafter, the answering defendant interposed an answer with affirmative defenses. The
remaining defendants have neither answered nor appeared herein, and thus are in default.
By way of background. the parties began a prolonged period of negotiations in an attempt to agree
on a loan modification, and foreclosure settlement conferences were conducted or adjourned beginning on
June 1, 2012 and lasting until August 6, 2013. A representative of the plaintiff attended and participated
in all settlement conferences. On the last date, this case was dismissed from the conference program as
the parties were unable to modify the loan or otherwise reach a settlement. Accordingly, there has been
compliance with CPLR 3408; no further conference is required under any statute, law or rule.

 

The plaintiff now moves for, inter alia, an order: ( 1) awarding summary judgment in its favor and
against the answering defendant, striking his answer and dismissing the affirmative defenses set forth
therein; (2) fixing the defaults of the non-answering defendants; (3) appointing a referee to (a) compute
amounts due under the subject mortgage; and (b) examine and report whether the subject premises should
be sold in one parcel or multiple parcels; and (4) amending the caption. In opposition, the answering
defendant has filed. inter alia. an affirmation from his counsel, and, in response, the plaintiff has a filed a
reply.

In its present form, RP APL§ 1304 provides that in a legal action, including a residential mortgage
foreclosure action, at least 90 days before the lender commences an action against the borrower. the lender
must send a notice to the borrower including certain language and the notice must be in 14-point type. The
notice must be sent by registered or certified mail and also by first-class mail to the last known address of
the borrower, and if different, to the residence that is the subject of the mortgage (see, RP APL § 1304).
Such notice shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any
[* 2] other mailing or notice (id.). The statute further provides that the notice shall contain a list of at least five
housing counseling agencies that serve the region where the borrower resides (id.). RP APL § 1304
provides that the notice must be sent to the “borrower,” a term not defined in the statute (Aurora Loan
Servs., LLC v Weisblum, 85 AD3d 95, l 05, 923 NYS2d 609 [2d Dept 2011 ]).

Proper service of the RP APL § I 304 notice containing the statutorily-mandated content on the
“borrower” or “borrowers” is a condition precedent to the commencement of a foreclosure action, and the
plaintiff’s failure to show strict compliance requires dismissal (Hudson City Sav. Bank v DePasquale, 113
AD3d 595. 596, 977 NYS2d 895 [2d Dept 2014]; Deutsclre Bank Natl. Trust Co. v Spanos, 102 AD3d
909, 910, 961NYS2d200 (2d Dept 2013];Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, supra
at 103 (2d Dept 2011]; see also, Pritchard v Curtis, 101 AD3d 1502, 1504, 957 NYS2d 440 [3d Dept
2012]). Since this action was commenced on December 27, 2011, the 90-day notice requirement set forth
in the statute is applicable. Thus, in support of its motion for summary judgment on the complaint, the
plaintiff 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 v Weisblum, 85 AD3d
at 106 [citation omitted]).

 

In meeting this burden, the plaintiff benefits from the long-standing doctrine of presumption of
regularity: generally, a letter or notice that is properly stamped, addressed, and mailed is presumed to be
delivered by that addressee (Trusts & Guar. Co. v Barnhardt, 270 NY 350, 352 [J 936]; News Syndicate
Co. v Gatti Paper Stock Corp., 256 NY 211, 214-216 [1931]; Connolly vA/lstate Ins. Co., 213 AD2d 787,
787, 623 NYS2d 373 (3d Dept 1995]; Kearney v Kearney, 42 Misc3d 360, 369, 979 NYS2d 226 [Sup Ct,
Monroe County 2013]). The presumption of receipt by the addressee “may be created by either proof of
actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly
addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680, 729 NYS2d
776 [2d Dept 200 I]). CPLR 2103(t)( l) defines mailing as “the deposit of a paper enclosed in a first class
postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated,
at that person’s last known address, in a post office or official depository under the exclusive care and
custody of the United States Postal Service within the state” (see, Lindsay v Pasternack Tilker Ziegler
Walsh Stanton & Romano LLP, 129 AD3d 790, 2015 NY Slip Op 04819 [2d Dept 2015]). “If that proof
is established, the burden shifts to the borrower,” and “the final legal truism prevails: once the presumption
of proper service has been established, mere denial of receipt is insufficient to rebut the presumption”
(Kearney v Keamey, 42 Misc3d 360, supra at 370; see, Matter of ATM One v Landaverde, 2 NY3d 472,
4 78, 779 NYS2d 808 [2004 ]).

The plaintiff failed to establish its prima facie entitlement to judgment as a matter of law because
it did not demonstrate that it complied with the condition precedent contained in the subject mortgage
agreement. which required that it provide the answering defendant with notice of default prior to
demanding payment of the loan in full (see, Nationstar Mtge., LLC v Dimura, 127 AD3d 1152. 7 NYS3d
573 [2d Dept 2015); HSBC Mtge. Corporatio11 (USA) v Gerber, 100 AD3d 966, 955 NYS2d 131 [2d Dept
2012]; cf, Deutsche Bank Natl. Trust Co. v MacP/1erson, 122 AD3d 896, 998 NYS2d 394 [2d Dept
2014); Indymac Bank, F.S.B. v Kamen, 68 AD3d 931, 890 NYS2d 649 [2d Dept 2009]). The
unsubstantiated and conclusory statements in the affidavit of the plaintiffs officer that “[o]n August 14,
[* 3] 201 I a demand letter was sent to the defendant[] … [which] identifies the amount due, and notifies
defendant that a foreclosure action could be commenced if the default was not cured within 30 days[]’\
even when combined with a copies of the notice of default, did not establish that the required notice was
mailed by first class mail or actually delivered to the notice address if sent by other means, as required by
the terms of the mortgage agreement (see, GMAC Mtge. LLC v Bell, 128 AD3d 772. 11 NYS3d 73 [2d
Dept 2015]; Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982, 988 NYS2d 682 l2d Dept 2014]; cf,
JPMorgan Chase Bank v Kang, 2015 NY Misc LEXIS 1953, 2015 NY Slip Op 30955 [U] lSup Ct,
Queens County 2015) [affidavit of merit of plaintiffs “Legal Specialist Ill” sufficiently detailed proof of
mailing of the default notice, by indicating that she had knowledge of and has reviewed business records,
which were maintained in the course of the plaintiffs regularly conducted business activities, and said
records included proof of mailing documentation obtained from the United States Post Office at or near
the time of mailing was made]). In her affidavit, the plaintiffs officer provided a summary of relevant
events, including the default in payments and the amounts due. The plaintiffs officer, however, did not
allege sufficient facts as to how compliance with the default notice provisions in the mortgage were
accomplished; nor did she identify the individual who allegedly did so (see, Nocella v Fort Dearborn Life
Ins. Co. of N.Y., 99 AD3d 877, 955 NYS2d 70 [2d Dept 2012]; cf, Preferred Mut. Ins. Co. v Donnelly,
l l 1 AD3d 1242, 974 NYS2d 682 [4th Dept 2013]). More specifically, the affiant did not give any
indication that she is familiar with the standard mailing practices or procedures of the entity alleged to have
sent the notices, and that those practices or procedures were followed in this instance. The affiant also
made no attempt to explain the significance of the certain documentation submitted herein and allegedly
addressed to the answering defendant, in which the default notices were allegedly mailed.

 

While compliance with the 90-day notice requirements of RP APL 1304 satisfies the 30-day default
notice requirements in a mortgage document (see, Wachovia Bank, N.A. v Carcano, 106 AD3d 724, 965
NYS2d 516 f2d Dept 2013]), the plaintiff also failed to supply adequate evidcntiary proof of compliance
with RP APL§ l 304 for the same reasons articulated above (see, Hudson City Sav. Bank v DePasquale,
113 AD3d 595, 977 NYS2d 895 [2d Dept 2014]; cf, TD Bank, N.A. v Leroy, 121AD3d1256. 995 NYS2d
625 f3d Dept 20141; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, supra; VS Bank N.A. v
Caro1111a. 92 AD3d 865, 938 NYS2d 809 [2d Dept 2012]). In any event, the conclusory statements set
forth in the affidavit of the plaintiff’s officer that “[a )t least 90 days prior to the commencement of this
action, (p ]laintiff provided RP APL § 1304 notice to the borrower[] … by first class and certified mail, to
the borrower’s last known address located at 501 Fulton Place, West Babylon, NY 11704, and to the
mortgaged premises,” even when combined with copies of certain documentation submitted herein, is
insufficient to meet the requirements of the statute (see, Hudson City Sav. Bank v DePasquale, J J 3 AD3d
595, supra; VS Bank Natl. Assn. v Lampley, 46 Misc3d 630, 996 NYS2d 499 [Sup Ct, Kings County
2014 ]). The affiant did not allege sufficient facts as to how compliance was accomplished. She also does
not state that she served the notice; nor does she identify the individual who allegedly did so. Additionally,
the plaintiff submitted neither an affidavit of service of the 90-day notice upon the answering defendant,
nor an affidavit from one with personal knowledge of the mailing, along with copies of the certified
mailing receipts stamped by the United States Post Office on the date of the alleged mailing (see, Deutsche
Bank Natl. Trust Co. v Spanos, 102 AD3d 909, supra).

Thus, the plaintiff failed to establish its prima facie entitlement to judgment as a matter oflaw with
respect to the answering defendant. The plaintiffs failure to make a prima facie showing requires the
[* 4] denial of the motion, regardless of the sufficiency of the defendant mortgagors’ opposing papers (see,
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [ 1985]).

In view of the open question of whether the plaintiff has complied with the default notice provisions
in the mortgage and whether the plaintiff strictly complied with the 90-day notice requirement of RP APL
§ 1304, the remaining branches of the plaintiffs motion are denied at this juncture.

In view of the foregoing, the proposed order submitted been marked “not
signed.”

__ FINAL DISPOSITION–=-=—
[* 5]

 

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