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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH RPAPL 1303 WHICH REQUIRES THE NOTICE OF FORECLOSURE TO USE SPECIFIC TYPE SIZES AND A PAPER-COLOR DIFFERENT FROM THE SUMMONS AND COMPLAINT; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff  bank in this foreclosure action did not demonstrate strict compliance with RPRL 1303, which requires that the notice of foreclosure use certain sizes of type and a different color paper:

RPAPL 1303 requires that a notice titled “Help for Homeowners in Foreclosure” be delivered to the mortgagor along with the summons and complaint in residential foreclosure actions involving owner-occupied, one- to four-family dwellings (see RPAPL 1303[1],[3] …). The statute mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type (see RPAPL 1303[2]). Proper service of an RPAPL 1303 notice is a condition precedent to commencing a foreclosure action, and the plaintiff has the burden of showing compliance with the statute … . Bank of N.Y. Mellon v McCaffrey, 2022 NY Slip Op 04619, Second Dept 7-20-22

Practice Point: In a foreclosure action, the bank’s strict compliance with the notice requirements in the Real Property Actions and Proceedings Law (RPAPL) is a condition precedent for the action. Here the bank did not demonstrate that the notice of foreclosure complied with RPAPL 1303 which requires certain type sizes and a paper-color different from that of the summons and complaint. The bank’s motion for summary judgment should not have been granted.

 

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THE BANK’S PROOF THAT THE RPAPL 1304 NOTICE OF FORECLOSURE WAS MAILED TO THE DEFENDANTS WAS INSUFFICIENT; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and therefore should not have been awarded summary judgment in this foreclosure action:

The affidavits of Daphne Proctor, Theresa Robertson, and April Martin, all of whom were document execution specialists employed by Nationstar Mortgage, LLC (hereinafter Nationstar), the plaintiff’s loan servicer, were insufficient to establish that the plaintiff complied with RPAPL 1304. Proctor, Robertson, and Martin attested that they were familiar with Nationstar’s records and record-keeping practices, but they failed to attest that they personally mailed the notices or that they were familiar with the mailing practices and procedures of Nationstar. Moreover, Martin attested that the plaintiff mailed the notices, but neither she nor Proctor or Robertson attested that they were familiar with the plaintiff’s mailing practices and procedures. Therefore, they failed to establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . The plaintiff also failed to submit any domestic return receipts or other documentation from the United States Postal Service proving the certified and first-class mailing … . The presence of numbered bar codes on the envelopes and the copies of the 90-day notices submitted by the plaintiff did not suffice to establish, prima facie, proper mailing under RPAPL 1304 … . Bank of N.Y. Mellon Corp. v Salvador, 2022 NY Slip Op 04618, Second Dept 7-20-22

Practice Point: These foreclosure summary-judgment reversals based on the bank’s failure to  submit sufficient proof of the mailing of the RPAPL 1304 notice of foreclosure to the defendants just keep coming, week after week, year after year.

 

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THE BANK DID NOT COMPLY WITH THE “SEPARATE ENVELOPE” REQUIREMENT OF RPAPL 1304 IN THIS FORECLOSURE ACTION ENTITLING THE DEFENDANTS TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action was not entitled to summary judgment on its motion to confirm the referee’s report and obtain a judgment of foreclosure. The defendants demonstrated the bank did not comply with the “separate envelope” rule in RPAPL 1304, which entitled to defendants to summary judgment dismissing the complaint:

… [T]he defendants established that the notices served by the plaintiff pursuant to RPAPL 1304 contained additional material in the same envelope as the RPAPL 1304 notice. The copies of the 90-day notice previously submitted by the plaintiff included additional notices not contemplated by RPAPL 1304(2), to wit, a notice pertaining to the rights of a debtor in bankruptcy, a notice to those in military service, and a notice advising customers to beware of any organization that attempts to charge a fee for housing counseling or modification of a delinquent loan … . Since the RPAPL 1304 notice was not “‘served in an envelope that was separate from any other mailing or notice'” … , the plaintiff did not strictly comply with RPAPL 1304 … . JPMorgan Chase Bank, N.A. v Dedvukaj, 2022 NY Slip Op 04541, Second Dept 7-13-22

Practice Point: If the defendants demonstrate the bank in a foreclosure action did not comply with the “separate envelope” requirement of RPAPL 1304 (by including other information in the envelope containing the notice of foreclosure), the defendants will be granted summary judgment dismissing the complaint.

 

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PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, AS WELL AS THE NOTICE REQUIRMENTS SPELLED OUT IN THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304 and the mortgage:

… [P]laintiff failed to establish, prima facie, that RPAPL 1304 notices were mailed to each defendant by certified and first-class mail. The affidavit submitted in support of the plaintiff’s motion does not contain an attestation that the affiant had personal knowledge of the purported mailings nor does the affiant attest to knowledge of the mailing practices of the Law Offices of McCabe, Weisberg, and Conway, P.C., the entity that allegedly sent the notices to the defendants on behalf of the loan servicer … . …

… [P]laintiff’s submission also failed to demonstrate that the RPAPL 1304 notices allegedly sent to the defendants contained the requisite list of five housing counseling agencies serving the region in which the subject property is located … . …

… [P]laintiff further failed to establish that the RPAPL 1304 notices were sent by the “lender, assignee, or loan servicer” as required by the statute … . … [T]he RPAPL notices were allegedly sent on August 7, 2014, by the Law Offices of McCabe, Weisberg, and Conway, P.C., on behalf of Ocwen Financial, the plaintiff’s loan servicer. However, the limited power of attorney authorizing Ocwen Financial to act on behalf of the plaintiff, which was submitted by the plaintiff in support of its motion, states that it was executed on and effective as of September 17, 2014.  …

… [P]laintiff failed to establish, prima facie, that it complied with a condition precedent contained in the mortgage agreement, requiring the lender to send a notice of default prior to the commencement of the action. The plaintiff’s submission failed to show that the required notice was sent to the defendants by first-class mail or actually delivered to the notice address if sent by other means, as required by the terms of the mortgage agreement … . Deutsche Bank Natl. Trust Co. v Pariser, 2022 NY Slip Op 04534, Second Dept 7-13-22

Practice Point: Yet again, summary judgment in favor of the bank in a foreclosure proceeding is reversed because the bank did not prove strict compliance with the notice requirements of RPAPL 1304 and the mortgage. Reversals on these grounds have appeared every week for at least five years, maybe more.

 

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PLAINTIFF BANK DID NOT PRESENT SUFFICIENT EVIDENCE OF STRICT COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Plaintiff did not prove the RPAPL 1304 was properly mailed to the defendants:

… [P]laintiff failed to establish its strict compliance with RPAPL 1304. The plaintiff relied on copies of the RPAPL 1304 notices allegedly mailed, purported domestic return receipts, and an affidavit of Catherine Rogers, a foreclosure specialist for Seterus, Inc., the plaintiff’s purported servicer. However, the domestic return receipts were unsigned and undated, and there was no other indication that the certified or first class mailings were accepted by the post office for mailing. Rogers also did not aver that she had personal knowledge of the mailing or of Seterus, Inc.’s standard office procedure designed to ensure that the notices were mailed. Thus, contrary to the plaintiff’s contention, it failed to establish, prima facie, that it strictly complied with RPAPL 1304 … . The plaintiff also failed to establish, prima, facie, that it complied with the notice of default requirement of the mortgage agreement … . Federal Natl. Mtge. Assn. v Young, 2022 NY Slip Op 04292, Second Dept 7-6-22

Practice Point: The mailing requirements of RPAPL 1304 must be strictly complied with and compliance must be proven in the bank’s summary judgment motion papers. Without proof of strict compliance, the motion must be denied.

 

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THE NOTICE OF FORECLOSURE WAS SENT TO DEFENDANT IN AN ENVELOPE WHICH INCLUDED OTHER NOTICES, A VIOLATION OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank violated the “separate envelope” rule (RPAPL 1304) in that the foreclosure notice sent to defendant included notices in addition to the foreclosure notice:

… [T]he plaintiff failed to establish, prima facie, that it complied with the “separate envelope” requirement of RPAPL 1304(2). “[I]nclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2)” … . The envelope containing the requisite notice under RPAPL 1304 included notices pertaining to the Federal Fair Debt Collection Practices Act (15 USC et seq.) and bankruptcy, and, therefore, the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304 … . US Bank N.A. v Lanzetta, 2022 NY Slip Op 04322, Second Dept 7-6-22

Practice Point: Here the notice of foreclosure was sent to defendant in an envelope with other notices, a violation of RPAPL 1304, which must be strictly complied with.

 

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IF AN APPELLATE ISSUE IS NOT LISTED IN THE NOTICE OF APPEAL, THE ISSUE IS NOT BEFORE THE APPELLATE COURT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined summary judgment was precluded by questions of fact in this action stemming from defendants’ blocking of a tunnel leading to plaintiffs’ parking garage. Plaintiffs alleged they own the rights to the easement created for the construction of the tunnel. The tunnel goes under the Rath Erie County Office Building and was apparently blocked by county officials for security reasons. The decision addresses declaratory judgment, breach of contract, trespass and appeal issues. Only the appeal issue is summarized here. If an appellate issue is not listed in the notice of appeal, the issue is not before the appellate court:

… [P]laintiffs’ contention on the cross appeal that the court erred in denying that part of the motion seeking a permanent injunction is not properly before us. In their notice of cross appeal, plaintiffs indicate that they are cross-appealing from the order “to the extent that the [c]ourt reached a determination as set forth in paragraph ‘e’ finding that the actions taken by . . . [d]efendants . . . constitute a taking.” It is well settled that, where a party files a notice of cross appeal indicating that it is appealing from a specific part of an order, that party “is limited by its notice of cross appeal to arguing only with respect to the” part of the order listed in the notice … . Pearl St. Parking Assoc. LLC v County of Erie, 2022 NY Slip Op 04235, Fourth Dept 7-1-22

Practice Point: When a party appeals from an order, only those portions of the order listed in the notice of appeal are before the court. If a portion of the order is not listed, the appellate court will not consider it.

 

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IN THIS FORECLOSURE ACTION, A PARTY WHO DID NOT SIGN THE NOTE BUT DID SIGN THE MORTGAGE IS A “BORROWER” ENTITLED TO RPAPL 1304 NOTICE; PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a borrower, Ellen Weininger, who signed the mortgage but not the note, was entitled to notice of foreclosure pursuant to RPAPL 1304:

… [I]t is undisputed that the plaintiff failed to serve Ellen Weininger with timely notice pursuant to RPAPL 1304, and, contrary to the plaintiff’s contention, Ellen Weininger was entitled to such notice as a “borrower” within the meaning of that statute. Although Ellen Weininger did not sign the underlying note, both of the defendants executed the mortgage as a “borrower.” Where, as here, a homeowner defendant is referred to as a “borrower” in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a “borrower” for the purposes of RPAPL 1304, notwithstanding the absence of a consolidation, extension, and modification agreement signed by that defendant or any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured … . Since Ellen Weininger signed the mortgage as a “borrower” and, in that capacity, agreed to pay the amounts due under the note, she was entitled to timely notice pursuant to RPAPL 1304 …  As the plaintiff conceded that it did not send the requisite notice pursuant to RPAPL 1304 to Ellen Weininger until 17 days before commencement of this action, it failed to meet its prima facie burden of establishing compliance with RPAPL 1304, and those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference should have been denied. Deutsche Bank Natl. Trust Co. v Weininger, 2022 NY Slip Op 04008, Second Dept 6-22-22

Practice Point: In this foreclosure proceeding, a party who did not sign the note but did sign the mortgage is a “borrower” entitled to the notice required by RPAPL 1304.

 

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COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304, PARTICULARLY THE MAILING REQUIREMENTS, WAS NOT SHOWN IN THIS FORECLOSURE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304:

… [A}lthough the plaintiff submitted a certified mail receipt, the receipt did not contain a postal stamp, indication that postage was paid, or an attendant signature, and the plaintiff did not submit any United States Postal Service tracking information … . The affidavit of Nancy Sczubleski, submitted by the plaintiff for the first time in opposition to the defendant’s cross motion, also failed to establish strict compliance with RPAPL 1304. Sczubleski did not have personal knowledge of the purported mailing … . Furthermore, while Sczubleski averred that she was familiar with the plaintiff’s mailing practices and procedures, the notices submitted by the plaintiff in support of its motion for summary judgment indicate that they were not mailed by the plaintiff, but rather were mailed by an entity known as MGC Mortgage, Inc. (hereinafter MGC). Sczubleski, who stated in her affidavit that she was employed by Dovenmuehle Mortgage, Inc., a sub-servicer of the loan, does not address this fact at all, let alone demonstrate that she was familiar with MGC’s mailing practices and procedures … . LNV Corp. v Allison, 2022 NY Slip Op 03716, Second Dept 6-8-22

Practice Point: Yet another example of the mortgagee’s failure to demonstrate the RPAPL 1304 notice was properly mailed in its foreclosure motion papers.

 

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ALTHOUGH DEFENDANT’S MOTION TO AMEND ITS ANSWER (ADDING AFFIRMATIVE DEFENSES) WAS MADE AFTER A TWO-YEAR DELAY, THE DELAY ALONE DID NOT DEMONSTRATE THE PLAINTIFF WAS PREJUDICED; THE MOTION TO AMEND SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to amend its answer to add additional affirmative defenses should have been granted. The two-year delay was not enough to show plaintiff was prejudiced. Discovery was ongoing:

The court should have granted defendant’s motion to amend its answer to add the four affirmative defenses of RPAPL 1951, adverse possession, mutual breach, and unclean hands, as leave to amend is freely given and plaintiff did not show that it would be prejudiced by the delay in asserting the defenses (CPLR 3025[b] …). While over two years had passed since defendant served its original answer, discovery was still ongoing … . Plaintiff’s claim of significant prejudice is unpersuasive, as all it points to is mere delay, which is insufficient to show prejudice … . Nor did plaintiff rebut defendant’s showing that the proffered amendment is not palpably insufficient or clearly devoid of merit … . Board of Mgrs. of the Porter House Condominium v Delshah 60 Ninth LLC, 2022 NY Slip Op 03680, First Dept 6-7-22

Practice Point: Here defendant moved to amend its answer by adding affirmative defenses two years after the answer was served. Discovery was still ongoing. The delay alone was not enough to demonstrate the plaintiff was prejudiced. The motion to amend should have been granted.

 

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