You are here: / / AT TRIAL IN THIS FORECLOSURE ACTION, PLAINTFF FAILED TO PROVE STANDING...
, ,

AT TRIAL IN THIS FORECLOSURE ACTION, PLAINTFF FAILED TO PROVE STANDING TO FORECLOSE AND FAILED TO PROVE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court and dismissing the foreclosure complaint, determined the plaintiff did not demonstrate standing to foreclose and did not demonstrate compliance with the notice-of-foreclosure mailing requirements of RPAPL 1304:

… [S]ince the witness on the issue of standing proffered by the plaintiff at the trial testified, among other things, that the purported allonges that were with the original note were not stapled to the note, and further testified that he did not know when the allonges were executed or attached to the note, the plaintiff failed to establish its standing as the holder of the original note at the time of the commencement of the action. * * *

… [P]laintiff’s witness on the issue of notice did not have knowledge of the mailing practices of the entity which, according to the plaintiff, sent the requisite 30-day and 90-day notices … . Moreover, the business records that were submitted in evidence failed to show that the requisite certified and first-class mailings of the RPAPL 1304 notices or the default notices were actually made to the defendants or that the default notices were actually delivered to their notice address. Thus, the plaintiff failed to demonstrate its strict compliance with RPAPL 1304 and failed to show that the default notices were sent in accordance with the terms of the mortgage agreement … . Onewest Bank FSB v Thomas, 2025 NY Slip Op 05692, Second Dept 10-15-25

Practice Point: If a foreclosure action goes to trial and standing is contested, the bank must prove it has standing to foreclose. In addition, the bank must prove compliance with the notice-of-foreclosure mailing requirements of RPAPL 1304. Here the failure of proof on those issues resulted in dismissal of the complaint.​

 

You might also like
DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT).
THE AFFIDAVIT FROM THE LOAN SERVICER PURPORTING TO DEMONSTRATE DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION DID NOT AVER THAT THE AFFIANT HAD THE AUTHORITY TO ACT FOR THE PLAINTIFF BANK (SECOND DEPT).
BASED UPON THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM, DEFENDANT SHOULD HAVE BEEN PRESENT AT THE IN CAMERA INTERVIEW OF THE STATUTORY-RAPE COMPLAINANT TO DETERMINE THE RELEVANCE OF HER PSYCHIATRIC HISTORY (A MATERIAL STAGE OF THIS PROCEEDING); DEFENDANT’S STATEMENT FOR WHICH NO 710.30 NOTICE WAS PROVIDED SHOULD NOT HAVE BEEN ADMITTED; THE MOLINEUX EVIDENCE OF INTENT, MOTIVE, OR LACK OF MISTAKE WAS NOT RELEVANT TO STATUTORY RAPE (SECOND DEPT).
BECAUSE THE COURT WAS NOT AUTHORIZED TO PLACE PETITIONER IN CUSTODY, THE COURT COULD NOT ORDER PETITIONER TO BE REMANDED TO RIKER’S ISLAND FOR A CPL ARTICLE 730 EXAMINATION; THE HABEAS CORPUS PETITION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
THE AFFIDAVIT SUPPORTING THE ADMISSIBILITY OF THE BUSINESS RECORDS OFFERED BY THE BANK IN THIS FORECLOSURE PROCEEDING DID NOT LAY A SUFFICIENT EVIDENTIARY FOUNDATION FOR THE RECORDS, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).
THE FIVE-YEAR DELAY BETWEEN PLAINTIFF-DECEDENT’S DEATH AND THE MOTION TO SUBSTITUTE AN ADMINISTRATOR DID NOT WARRANT DISMISSAL OF THE ACTION; DECEDENT HAD BEEN AWARDED SUMMARY JUDGMENT ON LIABILITY IN THIS TRAFFIC-ACCIDENT CASE (SECOND DEPT).
PLAINTIFF WAS INJURED WHEN A BEAM WHICH WAS BEING HOISTED STARTED SWINGING WHEN PLAINTIFF WAS HOLDING ON TO IT; THE BEAM STRUCK A PILE OF BEAMS ON THE GROUND AND PLAINTIFF WAS “JERKED … FORWARD;” BECAUSE THE BEAM SHOULD HAVE BEEN SECURED AND THE INJURY WAS RELATED TO THE FORCE OF GRAVITY PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).
ROBBERY FIRST REDUCED TO ROBBERY SECOND BECAUSE A THREAT TO USE A GUN IS NOT “DISPLAY” OF A GUN; “POSSESSION OF A FORGED INSTRUMENT” COUNTS VACATED BECAUSE THE WARRANTLESS SEARCH OF DEFENDANT’S WALLET WAS IMPROPER (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

IT WAS A PROPER EXERCISE OF DISCRETION TO EXTEND THE DEADLINE FOR THE FORECLOSURE... THERE IS A QUESTION OF FACT WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE...