You are here: / / THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED TO DEFENDANT WAS INADEQUATE...
, , ,

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.

 

You might also like
PLAINTIFF ENTITLED TO CONSIDERATION WHETHER ENFORCING THE AGREEMENT TO ARBITRATE THIS EMPLOYMENT DISPUTE WOULD, BECAUSE OF THE COSTS INVOLVED, EFFECTIVELY PRECLUDE PLAINTIFF FROM PURSUING HIS CLAIM (FIRST DEPT).
THE CLUB’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE DRAM SHOP ACT CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
DEFENDANT HAD BEEN TAKEN DOWN TO THE GROUND AND HANDCUFFED AT THE TIME THE BACKPACK HE WAS WEARING WAS SEARCHED; THE PEOPLE PRESENTED NO EVIDENCE OF EXIGENCY; THE SEARCH WAS THEREFORE UNJUSTIFIED (FIRST DEPT).
IN THE FACE OF BATSON CHALLENGES, THE FACTS THAT A JUROR HAD SERVED ON A HUNG JURY AND WORKED AT A SOUP KITCHEN AND ANOTHER JUROR WORKED FOR A COMMUNITY ORGANIZATION HELPING HIV-POSITIVE DRUG USERS WERE DEEMED VALID, RACE-NEUTRAL REASONS FOR STRIKING THE JURORS, THE CONCURRENCE NOTED THESE REASONS WERE BASED UPON QUESTIONABLE ASSUMPTIONS (FIRST DEPT)
THE CONTINUING WRONG DOCTRINE APPLIES TO THIS COMPLEX BREACH OF CONTRACT ACTION SUCH THAT EACH BREACH WAS AN ACTIONABLE EVENT; THEREFORE THE STATUTE OF LIMITATIONS DID NOT START RUNNING FOR ALL SUBSEQUENT BREACHES WHEN THE FIRST BREACH OCCURRED (FIRST DEPT).
THERE IS NO HEIGHTENED PLEADING REQUIREMENT FOR CONSEQUENTIAL DAMAGES STEMMING FROM A BREACH OF AN INSURANCE CONTRACT, PLAINTIFF ALLEGED THE INSURER’S DELAY IN PAYING THE CLAIM FOR DAMAGE TO PLAINTIFF’S BUILDING, WHICH SHIFTED WHEN WORK WAS DONE ON AN ADJOINING BUILDING, RESULTED IN AN ARRAY OF CONSEQUENTIAL DAMAGES, THE CONSEQUENTIAL DAMAGES ASPECT OF THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
HUSBAND DID NOT DEMONSTRATE ENTITLEMENT TO 50% OF THE APPRECIATION OF WIFE’S SEPARATE PROPERTY IN THIS DIVORCE ACTION (FIRST DEPT).
DATE OF WOMAN’S DISAPPEARANCE, NOT THE STATUTORY DEFAULT DATE FIVE YEARS LATER, WAS THE CORRECT DATE OF DEATH (FIRST 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

THE DEFENDANT WHICH RENTED OUT THE AERIAL LIFT WHICH MALFUNCTIONED WAS NOT AN... THE MOTION SEEKING A CIVIL CONTEMPT DETERMINATION COULD NOT BE HEARD BECAUSE...