You are here: / / THE AFFIDAVITS SUBMITTED BY PLAINTIFF BANK IN THIS FORECLOSURE ACTION FAILED...
, ,

THE AFFIDAVITS SUBMITTED BY PLAINTIFF BANK IN THIS FORECLOSURE ACTION FAILED TO DEMONSTRATE DEFENDANTS’ DEFAULT AND PLAINTIFF’S COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISIONS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank in this foreclosure action did not present sufficient proof of defendants’ default and plaintiff’s compliance with the notice-of-default requirements of RPAPL 1304:

… [T]he plaintiff failed to establish, prima facie, the defendants’ default in payment by submitting the affidavit of Brian Nwabaka, an employee of its loan servicer, Bayview Loan Servicing, LLC (hereinafter Bayview). Nwabaka averred that, based upon his review of unspecified business records, the defendants defaulted in making monthly payments in October 2008. However, Nwabaka did not aver that he had personal knowledge of the defendants’ alleged default in payment. Moreover, Nwabaka failed to identify which records he relied on to assert a default in payment, and the notice of default annexed to Nwabaka’s affidavit was insufficient to establish the alleged default in payment … .

… [T]he plaintiff submitted, inter alia, the affidavits of Nwabaka and Rosalind Carroll, document coordinator for Bayview, each of whom averred that the 90-day notices were sent by certified and first-class mail. However, neither Nwabaka nor Carroll attached any documents showing proof of mailing by first-class mail, nor did they aver that they had personal knowledge of the purported mailings or were familiar with the mailing practices and procedures of Bayview … . Although Nwabaka attested to his familiarity with the mailing practices and procedures of Countrywide Home Loan, the prior loan servicer, he did not aver to familiarity with the mailing practices and procedures of Bayview, which purportedly sent the 90-day notices. Bank of N.Y. Mellon v Mannino, 2022 NY Slip Op 05675, Second Dept 10-12-22

Practice Point: Yet again the affidavits offered by plaintiff-bank in a foreclosure action were not sufficient to demonstrate defendants’ default or plaintiff’s compliance with the notice-of-default requirements of RPAPL 1304.

 

You might also like
AFTER CONVERTING THE ARTICLE 78 PETITION TO A COMPLAINT THE JUDGE SHOULD NOT HAVE TREATED THE MOTION TO DISMISS AS A SUMMARY JUDGMENT MOTION WITHOUT NOTIFYING THE PARTIES (SECOND DEPT).
DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT).
Cause of Action for Breach of “Sharing Assets” Agreement Entered Into During an 18-Year “Committed Same-Sex Relationship” Reinstated
Criteria for Downward Departure in SORA Proceeding Explained
Notice of Claim Deemed Insufficient to Allege Negligent Design or Construction of Road
PROOF OF MAILING REQUIREMENTS OF RPAPL 1304 NOT MET, BANK’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT).
PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STROKE DIAGNOSIS WAS TIMELY AND WHETHER THE FAILURE TO MAKE A TIMELY DIAGNOSIS DECREASED THE CHANCES OF A BETTER OUTCOME (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF BICYCLIST STRUCK THE DOOR OF DEFENDANT’S VAN AFTER DEFENDANT... PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION...