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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT SUBMIT ADEQUATE PROOF THAT THE NOTICE OF DEFAULT WAS PROPERLY MAILED TO AND RECIEVED BY THE DEFENDANT AS REQUIRED BY THE MORTGAGE AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not prove the notice of default was mailed to defendant as required by the mortgage agreement:

The plaintiff’s submissions were insufficient to establish that a notice of default in accordance with section 22 of the mortgage agreement was sent to the defendant as required by section 15 of the mortgage agreement. Section 15 of the mortgage agreement provides that notice to the borrower is considered sent “when mailed by first class mail or when actually delivered to [the borrower’s] notice address if sent by other means.” The affidavit of mailing was insufficient to establish a mailing by either first-class or certified mail. Although [the affidavit] asserted personal knowledge of the mailing, the affidavit was dated nine months after the date on which the notices of default were purportedly mailed, and the affidavit was unsupported by any contemporaneous documentation … . The certified mail receipts submitted by the plaintiff were not stamped or postmarked, and the domestic return receipts were unsigned. Thus, there was inadequate proof that the notices of default were actually delivered to the defendant. Further, although mailing may also be established by proof of a standard office mailing procedure … , in her affidavit [the foreclosure specialist] failed to make the requisite showing that she was familiar with the mailing practices and procedures of the plaintiff’s counsel, which apparently mailed the notices of default … and, in any event, failed to describe a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Wilmington Trust, N.A. v Singh, 2025 NY Slip Op 04938, Second Dept 9-10-25

Practice Point: Once again, failure to prove mandatory notices were properly mailed and received by the defendant in a foreclosure action required reversal of the judgment of foreclosure.

 

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