You are here: / / FAILURE TO PROVE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE PROVISIONS OF...
, ,

FAILURE TO PROVE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE PROVISIONS OF RPAPL 1304 REQUIRED REVERSAL OF SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to prove compliance with the notice requirements in RPAPL 1304 required reversal in this foreclosure action:

… [T]he plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304. To that end, the plaintiff submitted an affidavit of Sarah L. Stonehocker, a vice president of loan documentation employed by the plaintiff’s loan servicer, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), with attachments, which were insufficient to establish compliance with RPAPL 1304. While Stonehocker averred that she had personal knowledge of Wells Fargo’s business records and that, according to the business records she reviewed, 90-day notices were served via certified and first-class mail at the subject property, Stonehocker did not attest that she was familiar with the standard office mailing procedures of LenderLive, LLC (hereinafter LenderLive), the third-party vendor that apparently sent the RPAPL 1304 notices on behalf of the plaintiff. Thus, Stonehocker’s “affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed” … .

Moreover, Stonehocker’s affidavit failed to address the nature of Wells Fargo’s relationship with LenderLive and whether LenderLive’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business… . Thus, Stonerhocker’s affidavit failed to lay a foundation for the admission of a transaction report generated by LenderLive (see CPLR 4518[a] …). “Finally, the tracking numbers on the copies of the 90-day notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304” … . U.S. Bank N.A. v Nahum, 2024 NY Slip Op 05581, Second Dept 11-13-24

Practice Point: Reversal of summary judgment because the bank failed to prove the RPAPL 1304 notice of foreclosure was properly mailed to defendant(s) is becoming less frequent, but there have been hundreds of reversals on this same ground over at least the last ten years.

 

You might also like
THE COUNTY CHARTER, WHICH PURPORTED TO ELIMINATE THE CONSTRUCTIVE-NOTICE THEORY OF LIABILITY FOR INJURY TO A BICYCLIST BY A DANGEROUS CONDITION IN A COUNTY ROAD, DID NOT SUPERSEDE THE HIGHWAY LAW; TO STATE A PRIMA FACIE CASE IN SUPPORT OF SUMMARY JUDGMENT, THE COUNTY MUST DEMONSTRATE BOTH A LACK OF WRITTEN NOTICE AND A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT).
PLAINTIFF BANK NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE IT FAILED TO DEMONSTRATE COMPLIANCE WITH RPAPL 1304, A CONDITION PRECEDENT; DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE HE DID NOT DEMONSTRATE THE BANK FAILED TO COMPLY WITH RPAPL 1304 (SECOND DEPT).
THE DEFENDANT’S WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE FAILED TO ADVISE DEFENDANT (1) THAT THE STATE WOULD BEAR THE COSTS OF AN APPEAL IF THE DEFENDANT COULD NOT AFFORD THEM; AND (2) THE WAIVER DID NOT ENCOMPASS THE LOSS OF RIGHTS TO COUNSEL AND THE WAIVER OF COSTS, FEES, AND EXPENSES; IN ADDITION THE JUDGE DID NOT ASCERTAIN WHETHER DEFFENDANT READ AND UNDERSTOOD THE WRITTEN WAIVER FORM, OR WHETHER DEFENDANT HAD DISCUSSED THE WAIVER WITH COUNSEL (SECOND DEPT). ​
SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE.
Elements of False Arrest and Malicious Prosecution Explained
THE BROKERAGE AGREEMENT DID NOT GIVE PLAINTIFF THE EXCLUSIVE RIGHT TO NEGOTIATE A LOAN ON DEFENDANT’S BEHALF; THEREFORE PLAINTIFF WAS NOT ENTITLED TO A COMMISSION ON A LOAN PROCURED BY DEFENDANT WITHOUT PLAINTIFF’S ASSISTANCE; “EXCLUSIVE RIGHT TO …” CRITERIA IN THIS CONTEXT EXPLAINED (SECOND DEPT).
SORA Court Has Discretion to Deny Downward Departure Even When Mitigating Factor Demonstrated by Preponderance of Evidence
THE CITY HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT FROM AN ACCIDENT REPORT AND THEREFORE WAS NOT PREJUDICED BY THE FAILURE TO FILE A NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED DESPITE THE ABSENCE OF A REASONABLE EXCUSE (SECOND 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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PROOF THAT PLAINTIFF WIFE ASSUMED FULL RESPONSIBILITY FOR HOUSEHOLD CHORES,... THE FAILURE TO GRANT PLAINTIFF’S REQUEST THAT THE JURY BE GIVEN AN INTERROGATORY...