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PLAINTIFF BANK PRESENTED INSUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, THE BANK SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present sufficient evidence of compliance with the notice requirements of RPAPL 1304:

[T]he plaintiff submitted the affidavit of April Simmons, an employee of the plaintiff’s loan servicer, Nationstar Mortgage, LLC (hereinafter Nationstar), along with copies of two 90-day notices addressed to the defendant. Simmons, however, did not state in her affidavit that she personally mailed these notices to the defendant, and she did not aver that she was familiar with the mailing practices and procedures of the entity which sent the notices … . Moreover, although the envelopes accompanying the 90-day notices state “First-Class Mail” and contain a bar code above a 20-digit number, the plaintiff failed to submit any receipt or corresponding document proving that the notices were actually sent by first-class and certified mail to the defendant more than 90 days prior to the commencement of the action … . U.S. Bank, N.A. v Zientek, 2021 NY Slip Op 02015, Second Dept 3-31-21

 

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THE BANK’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION WAS INSUFFICIENT... THE 2ND DEPARTMENT REVERSED THE AWARD OF SUMMARY JUDGMENT TO THE BANK BECAUSE...