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PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE NOTICE REQUIREMENTS OF RPAPL 1304 DID NOT APPLY AND DID NOT PRESENT SUFFICIENT EVIDENCE OF THE MAILING OF THE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate the notice requirements of RPAPL 1304 did not apply and did not demonstrate compliance with RPAPL 1304 in this foreclosure action. The bank did not show that the underlying loan was not a “home loan,” and the proof of mailing of the notice was insufficient:

… [T]he plaintiff failed to show, prima facie, that the RPAPL 1304 90-day notice requirement was inapplicable because the loan was not a “home loan” … .​

RPAPL 1304 requires the 90-day notice to 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]). “By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or 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'” … .

Here, the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by an individual with personal knowledge of that procedure. U.S. Bank Trust, N.A. v Sadique, 2019 NY Slip Op 09054, Second Dept 12-18-19

 

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