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PLAINTIFF BANK DID NOT DEMONSTRATE THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE WITH RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULDN’T HAVE BEEN GRANTED (SECOND DEPT).

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

… [T]he plaintiff relied on the affidavit of Brown, an employee of Nationstar, the plaintiff’s loan servicer, who stated that the plaintiff had mailed the RPAPL 1304 notice in accordance with the plaintiff’s practices and procedures. However, Brown then stated that her conclusion was based on her review of Nationstar’s file, and on Nationstar’s mailing practices and procedures. Thus, Brown’s affidavit failed to eliminate triable issues of fact as to who actually mailed the RPAPL 1304 notice, and the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 … . Wells Fargo Bank, N.A. v Matsuoka, 2023 NY Slip Op 00230, Second Dept 1-18-23

Practice Point: In a foreclosure action, if the bank doesn’t prove who mailed the notice of foreclosure as required by RPAPL 1304 the bank’s motion for summary judgment should not be granted.

 

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