IN THIS FORECLOSURE ACTION, THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE WITH RPAPL 1304 WAS INSUFFICIENT; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The proof the notice of foreclosure was mailed in accordance with RPAPL 1304 was insufficient:

… [T]he testimony of the plaintiff’s sole witness at trial, Lawrence Nardi, a case manager for the plaintiff’s servicer, Select Portfolio Servicing (hereinafter SPS), was insufficient to establish a standard office mailing procedure designed to ensure that notices were properly addressed and mailed … . Moreover, while the plaintiff presented copies of 90-day notices containing a 20-digit bar code, those letters contained no language indicating that they were sent by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service … . In addition, the plaintiff failed to present any receipt or corresponding document issued by the U.S. Postal Service showing that the notice was actually sent by first-class or certified mail more than 90 days prior to commencement of the action … . Thus, the plaintiff failed to demonstrate its strict compliance with RPAPL 1304 … . U.S. Bank N.A. v Kissi, 2023 NY Slip Op 04790, Second Dept 9-27-23

Practice Point: Here the bank did not prove the notice of foreclosure was mailed in accordance with RPAPL 1304. Therefore the referee’s report should not have been confirmed.