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THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 WAS SUFFICIENT, BUT THE BANK’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION WAS NOT SUFFICIENT; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s proof of compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 was sufficient, but the bank’s proof of standing to bring the foreclosure action was insufficient:

… [T]he plaintiff demonstrated, prima facie, that it complied with RPAPL 1304 … . The plaintiff submitted the affidavit of a person employed by the plaintiff as a business operations analyst, who described the procedure by which mailings were documented in a correspondence log, and laid a foundation for consideration of business records he submitted. Annexed to the affidavit was a copy of excerpts of the correspondence log, which indicated that notices pursuant to RPAPL 1304 were sent to the defendant by certified and first-class mail. The plaintiff also submitted, inter alia, a copy of an envelope addressed to the defendant bearing a USPS certified mail barcode, and a copy of an envelope addressed to the defendant bearing a USPS first-class mail barcode, along with copies of the RPAPL 1304 notices sent to the defendant. …

… [T]he plaintiff submitted a copy of the note, along with a paper, which was labeled an allonge, containing an endorsement in blank. However, the plaintiff did not submit evidence to indicate that the purported allonge was so firmly affixed to the note so as to become a part thereof, as required under UCC 3-202(2) … . Moreover, at the time the action was commenced, the plaintiff appended a copy of the note to the complaint, but the plaintiff did not append a copy of the purported allonge … . The affidavits submitted by the plaintiff do not eliminate triable issues of fact as to whether the plaintiff was in possession of the note at the time the action was commenced. Therefore, the plaintiff failed to establish, prima facie, that it had standing to commence the action … .  Citimortgage, Inc. v Ustick, 2020 NY Slip Op 06489, Second Dept 11-12-20

 

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