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THE BANK’S PROOF THAT THE RPAPL 1304 NOTICE OF FORECLOSURE WAS MAILED TO THE DEFENDANTS WAS INSUFFICIENT; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and therefore should not have been awarded summary judgment in this foreclosure action:

The affidavits of Daphne Proctor, Theresa Robertson, and April Martin, all of whom were document execution specialists employed by Nationstar Mortgage, LLC (hereinafter Nationstar), the plaintiff’s loan servicer, were insufficient to establish that the plaintiff complied with RPAPL 1304. Proctor, Robertson, and Martin attested that they were familiar with Nationstar’s records and record-keeping practices, but they failed to attest that they personally mailed the notices or that they were familiar with the mailing practices and procedures of Nationstar. Moreover, Martin attested that the plaintiff mailed the notices, but neither she nor Proctor or Robertson attested that they were familiar with the plaintiff’s mailing practices and procedures. Therefore, they failed to establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . The plaintiff also failed to submit any domestic return receipts or other documentation from the United States Postal Service proving the certified and first-class mailing … . The presence of numbered bar codes on the envelopes and the copies of the 90-day notices submitted by the plaintiff did not suffice to establish, prima facie, proper mailing under RPAPL 1304 … . Bank of N.Y. Mellon Corp. v Salvador, 2022 NY Slip Op 04618, Second Dept 7-20-22

Practice Point: These foreclosure summary-judgment reversals based on the bank’s failure to  submit sufficient proof of the mailing of the RPAPL 1304 notice of foreclosure to the defendants just keep coming, week after week, year after year.

 

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