You are here: / / THE BANK DID NOT PROVE COMPLIANCE WITH THE NOTICE AND MAILING REQUIREMENTS...
, ,

THE BANK DID NOT PROVE COMPLIANCE WITH THE NOTICE AND MAILING REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304:

… [P]laintiff failed to establish its strict compliance with RPAPL 1304. The plaintiff relied upon the affidavit of Summer Young, a vice president of the plaintiff’s purported loan servicer. The affidavit was based upon Young’s review of her employer’s records, which were attached thereto. Young did not aver that she had personal knowledge of the mailing, and her affidavit did not contain proof of the standard office mailing procedure at the time the RPAPL 1304 notice allegedly was sent … . Nor did the annexed records demonstrate, prima facie, that the requisite RPAPL 1304 mailings were completed … . Because the plaintiff “failed to provide proof 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 its strict compliance with RPAPL 1304,” and therefore failed to establish, prima facie, its entitlement to judgment as a matter of law …  The plaintiff also failed to establish, prima facie, that it complied with the notice of default requirement of the mortgage agreement … . HSBC Bank USA, N.A. v Michalczyk, 2022 NY Slip Op 07222, Second Dept 12-21-22

Practice Point: the bank in this foreclosure action did not present sufficient evidence of compliance with the notice and mailing requirements of RPAPL 1304.

 

You might also like
“Preamble” Read to Defendant Before the Miranda Warnings Neutralized the Effect of the Warnings—Defendant’s Statement Should Have Been Suppressed
Notice to Admit Improperly Sought Admission at Heart of Case
A DANGEROUS CONDITION, A DOOR WHICH SWUNG CLOSED ABRUPTLY, IS ALLEGED TO HAVE INJURED PLAINTIFF; TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DOOR, THE DEFENDANT MUST SUBMIT EVIDENCE THE DOOR WAS INSPECTED OR MAINTAINED AND FOUND SAFE CLOSE IN TIME TO THE INJURY; THE FAILURE TO SUBMIT SUCH EVIDENCE REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
Primary Assumption of Risk Jury Charge Required Reversal.
A PROPER FOUNDATION WAS NOT PROVIDED FOR THE ADMISSIBILITY OF SOME BUSINESS RECORDS RELIED ON BY THE REFEREE IN THIS FORECLOSURE ACTION; THE MOTION TO CONFIRM THE REFEREE’S REPORT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE CUSTODY AWARD SHOULD NOT HAVE BEEN MADE, SUA SPONTE, WITHOUT A PLENARY HEARING; WHERE A CUSTODY AWARD IS MADE WITHOUT A HEARING THE COURT SHOULD ARTICULATE THE FACTORS CONSIDERED (SECOND DEPT). ​
Handwriting Expert Not Necessary to Create Question of Fact About Authenticity of Signature
ALLEGATION THE LADDER PLAINTIFF WAS USING SHIFTED FOR NO APPARENT REASON ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF IN THIS NON-JURY TRIAL DID NOT DEMONSTRATE COMPLIANCE WITH RPAPL 1303;... THE CALCULATIONS IN THE REFEREE’S REPORT WERE NOT SUPPORTED BY THE RELEVANT...