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THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED TO DEFENDANT WAS INADEQUATE AND THE NOTICE DID NOT INCLUDE A STATEMENT REQUIRED BY RPAPL 1304; THEREFORE THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The Frist Department, reversing Supreme Court in this foreclosure action, determined compliance with the notice-of-foreclosure requirements in the mortgage as well land the notice requirements imposed the RPAPL 1304 was not demonstrated. Plaintiff should not have been awarded summary judgment:

… [N]either the affidavits nor the business records made the requisite demonstration of mailing as required by the mortgage agreement … . Although one of Serterus’s [the mortgage servicer’s] employees stated that Serterus followed the prior mortgage servicer’s procedures for mailing the default notice, she stated only that she had personal knowledge of Serterus’s recordkeeping practices and procedures, not that she had personal knowledge that the notice of default was actually mailed. Nor did the employee attest to her familiarity with the mailing procedures of either Chase, which the default notice identified as the sender, or its servicer … . Although the employee stated that records of the mailing were attached, the only record of mailing of the notice was the notice itself, which contained no information about whether and when it was mailed. Similarly, the affidavit by the other Serterus employee lacked any indication of how she concluded that the contractual default notice was, in fact, sent. In addition, defendant submitted an affidavit denying ever having received the notice … .

Further, service of the 90-day notice pre-foreclosure notice required by RPAPL 1304 did not comply with the requirement of service of the default notice required under the mortgage agreement. The mortgage agreement required that the default notice thereunder inform the defendant borrower that if the default was not cured by the date stated in the notice, the lender may require immediate payment in full. However, the RPAPL 1304 notice contains no such statement. Federal Natl. Mtge. Assn. v Adago, 2023 NY Slip Op 04717, First Dept 9-26-23

Practice Point: Proof of compliance with the notice-of-foreclosure requirements in the mortgage as well as the notice requirements imposed by RPAPL 1304 are prerequisites to foreclosure.

 

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