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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 13O4 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 was not demonstrated by the bank:

… [T]he affidavit of Theresia Ang, assistant vice president for the loan servicer, PHH Mortgage Corporation (hereinafter PHH), which was submitted in support of the motion, was insufficient to establish that the notice was sent to the defendants in the manner required by RPAPL 1304 … . While Ang attested that “a ninety (90) day pre-foreclosure notice” was sent to the defendants “by registered or certified and first class mail,” and attached a copy of the notice along with a proof of filing statement from the New York State Banking Department, “the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened” … . The plaintiff did not submit an affidavit of service, or proof of mailing by the post office evincing that it served the defendants pursuant to RPAPL 1304 by registered or certified mail and also by first-class mail to their last known address … . Moreover, while Ang attested that she had personal knowledge of the records maintained in PHH’s electronic record keeping system, the plaintiff failed to submit 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” … . KeyBank N.A. v Barrett, 2019 NY Slip Op 08835, Second Dept 12-11-19

 

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