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THE BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF STANDING OR COMPLIANCE WITHE THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; THE BANKS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence of standing to bring the foreclosure action and compliance with the RPAPL 1304 notice requirements:

… [T]he plaintiff failed to establish, prima facie, that it had standing to commence this action. Although the employee of the plaintiff’s loan servicer stated in her affidavit, which was submitted by the plaintiff in support of its motion, that the plaintiff was the holder of the note, she never stated that the plaintiff was the holder of the note at the time the action was commenced … . Further, the plaintiff failed to establish that the note was attached to the complaint at the time of the commencement of the action … . …

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 because the employee of the plaintiff’s loan servicer, in her affidavit, failed to assert personal knowledge of the purported mailing or make the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures in order to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Bank of Am., N.A. v Palacio, 2020 NY Slip Op 05480, Second Dept 10-7-20

 

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