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IN THIS FORECLOSURE ACTION, THE FAILURE TO ATTACH THE RELEVANT BUSINESS RECORDS, AS WELL AS THE FAILURE TO PROVIDE PROOF OF MAILING, RENDERED THE PROOF OF COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISIONS OF THE MORTGAGE INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice-of-default provisions of the mortgage in this foreclosure action:

… [T]he plaintiff failed to establish … that it complied with the notice of default provisions of the mortgage, which … required the plaintiff to send the notice by first-class mail to the subject property and to provide a 30-day cure period. Copies of the notice without proof of mailing, along with the affidavit of a representative of the loan servicer averring, based upon her review of unspecified business records which were not attached to the affidavit, that such a notice of default was sent on an unspecified date, was insufficient to satisfy the plaintiff’s prima facie burden … .Bank of Am., N.A. v Shirazi, 2022 NY Slip Op 01984, Second Dept 3-23-22

Practice Point: Although most foreclosure-reversals are due to the bank’s failure to demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304, here the bank failed to demonstrate compliance with the notice-of-default provisions in the mortgage document.

 

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Although Not Raised by the Defendant Below, the Appellate Court Vacated the Default Pursuant to CPLR 317

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