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THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 AND THEREFORE WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the plaintiff bank failed to demonstrate compliance with the notice requirements of RPAPL 1304 and therefore was not entitled to summary judgment:

The plaintiff … failed to demonstrate, prima facie, its compliance with RPAPL 1304, in that it failed to establish proof of the requisite mailing. The affidavit of Sarah Stonehocker, a vice president of loan documentation for Wells Fargo, the plaintiff’s loan servicer, was insufficient to establish that the notice was sent to the borrowers in the manner required by RPAPL 1304. Stonehocker averred that she had personal knowledge of Wells Fargo’s record-keeping practices and procedures, but she did not attest to having personal knowledge of the record-keeping practices and standard office mailing procedures of Walz Facility (hereinafter Walz), the entity, that according to tracking information printouts, mailed the RPAPL 1304 notices … . Nor did she attest that Walz’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business … . Thus, Stonehocker’s affidavit failed to establish “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” … .

Moreover, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304 since it failed to demonstrate that it sent an individually addressed RPAPL 1304 notice to each borrower, as required by the statute … . U.S. Bank N.A. v Reddy, 2023 NY Slip Op 05417, Second Dept 10-25-23

Practice Point: Once again the bank’s failure to prove compliance with the mailing requirements of RPAPL 1304 resulted in reversal of summary judgment in this foreclosure action.

 

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