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THE BANK’S PROOF OF DEFENDANT’S DEFAULT, MAILING OF THE NOTICE OF DEFAULT, AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE MORTGAGE IN THIS FORECLOSURE ACTION WAS INSUFFICIENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank’s proof of defendant’s default and mailing of the notice of default was insufficient in this foreclosure action:

… [T]he plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to submit evidence demonstrating the defendant’s default and that it complied with the notice of default provisions in the mortgage. In support of its motion, the plaintiff submitted an affidavit of Sonja Manderville, who averred that, in her position as a contract management coordinator of … the plaintiff’s loan servicer, she has access to and is familiar with the business records related to the mortgage loan at issue. She averred that the records “were made at or near the time of the Transactions documented thereby by a person with knowledge of the Transactions . . . and are maintained in the regular and usual course of business.” However, Manderville failed to aver to familiarity with the record-keeping practices and procedures of the entity that generated the records or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business … .

… Manderville failed to identify the records upon which she relied, and the plaintiff failed to submit copies of the records themselves. …

… Manderville’s assertions regarding the purported mailing of the notice of default were insufficient to establish a mailing … .Manderville failed to allege familiarity with the mailing practices and procedures of the third party that allegedly sent the notice of default in 2009 … . Since the plaintiff failed to provide evidence of the actual mailing, 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,” the plaintiff failed to establish that the notice of default was sent in accordance with the terms of the mortgage … . Deutsche Bank Natl. Trust Co. Ams. v Banu, 2022 NY Slip Op 03231, Second Dept 5-18-22

Practice Point: In this foreclosure action, the affidavit submitted by the bank to demonstrate defendant’s default and the mailing of the notice of default was deficient and the relevant business records were not submitted. These “foundational-affidavit” problems and the failure to submit the records referenced in the foundational affidavit have required reversal on appeal in literally hundreds cases over the last five or more years.

 

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE “SEPARATE ENVELOPE”... ALTHOUGH A FORECLOSURE ACTION USUALLY ACCELERATES THE DEBT AND STARTS THE STATUTE...