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THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate defendant’s default and did not demonstrate compliance with the notice provisions of RPAPL 1304:

… [I]n attempting to establish the defendant’s default in payment, the plaintiff relied on the affidavit of Jessica Fernandez, an assistant vice president of Bayview, the plaintiff’s assignee. * * * … [T]he payment history was a record made by Chase, not Bayview. … Fernandez did not attest that she was personally familiar with Chase’s record-keeping practices and procedures …  or that records provided by Chase were incorporated into Bayview’s records and routinely relied upon by Bayview in its own business … . …Fernandez failed to lay a proper foundation for the admission of the payment history and her assertions based on that record were inadmissible … .

The plaintiff also failed to establish, prima facie, its strict compliance with RPAPL 1304. RPAPL 1304 provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower” … . “The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower” … . …

In support of its motion, the plaintiff submitted a copy of a 90-day notice from the plaintiff, addressed to the defendant at the premises address. … [T]he notice … does not include the list of at least five housing agencies that served the region where the defendant resided … . … [T]he plaintiff failed to submit proof of the actual mailing of the notice, 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 … . JPMorgan Chase Bank, N.A. v Deblinger, 2022 NY Slip Op 00410, Second Dept 1-26-22

 

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