Real Property Actions and Proceedings Law (RPAPL) – Page 14

THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION WAS INSUFFICIENT; THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT WERE NOT PRODUCED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the bank’s proof of compliance with the notice requirements of RPAPL 1304 was insufficient. The court noted that, under the facts, standing to contest the bank’s compliance with RPAPL 1304 was personal to each borrower, one borrower could not assert that defense on behalf of another borrower:

JPMorgan submitted an affidavit, entitled an “Affidavit of Mailing,” signed by James A. Ranaldi, an “Authorized Signer” employed by JPMorgan. Ranaldi, however, did not attest to personal knowledge of the actual mailings. Nor did he state that he had personal knowledge “of a standard office mailing procedure designed to ensure that items are properly addressed and mailed” … . Although Ranaldi asserted, based upon his review of business records associated with the subject loan, that “a ninety-day (90) pre-foreclosure notice dated 12/04/2009 was sent by regular first class and certified mail under the exclusive care and custody of the United States Postal Service addressed to [the defendant at the subject property],” “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted”… . The records attached to Ranaldi’s affidavit provided evidence that the 90-day notice was sent to the defendant by certified mail. But none of the documents, considered individually or together, including the copies of the notice letters themselves, provided any information as to whether the 90-day notice was sent to the defendant by regular first-class mail … . Without business records proving the matter asserted, Ranaldi’s “unsubstantiated and conclusory” statement, by itself, was insufficient to establish that the RPAPL 1304 notice was mailed to the defendant by first-class mail … . Wilmington Sav. Fund Socy., FSB v Kutch, 2022 NY Slip Op 01066, Second Dept 2-16-22

February 16, 2022

Attorneys, Real Property Actions and Proceedings Law (RPAPL)

IN AN ACTION FOR A LICENSE PURSUANT TO RPAPL 881 TO ALLOW PETITIONER ACCESS TO RESPONDENTS’ ABUTTING BUILDING TO FACILITATE CONSTRUCTION WORK ON PETITIONER’S BUILDING, RESPONDENTS ARE ENTITLED TO LICENSE FEES, ATTORNEY’S FEES, ENGINEERING FEES, ETC., ASSOCIATED WITH PROTECTING THEIR BUILDING AND TO COMPENSATE FOR INTERFERERENCE WITH THE USE OF THEIR BUILDING, IRRESPECTIVE OF WHETHER THERE IS ANY DAMAGE TO RESPONDENTS’ BUILDING (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the grant of a license to petitioner, pursuant to RPAPL 881, to enter respondents’ abutting property to protect the abutting property during construction work on petitioner’s building, but vacated or reduced some of the specific costs and/or damages awarded. The First Department noted that attorney’s fees, license fees and engineering fees, etc., associated with the respondents’ efforts to protect their building and the loss of use and enjoyment of their building during construction are properly assessed to the petitioner:

What petitioner seeks is essentially to compel respondents to grant it a license on its own terms. However, as we have recognized, because “[t]he respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it . . . [e]quity requires that the owner compelled to grant access should not have to bear any costs resulting from the access” … . Thus, the grant of licenses pursuant to RPAPL 881 often warrants the award of contemporaneous license fees … . Contrary to petitioner’s contention that a license fee constitutes a windfall unless there are some actual damages, such as lost business, we have found that a license fee is warranted “where the granted license will entail substantial interference with the use and enjoyment of the neighboring property during the [license] period, thus decreasing the value of the property during that time” … .

Similarly, a compulsory licensor should be entitled to reasonable attorneys’ and engineering fees … . Matter of Panasia Estate, Inc. v 29 W. 19 Condominium, 2022 NY Slip Op 00975, First Dept 2-15-22

February 15, 2022

Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE ACTION AFTER TRIAL ON THE GROUND PLAINTIFF DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSION OF THE DOCUMENTS REQUIRED TO MAKE OUT A PRIMA FACIE CASE; COMPLAINT REINSTATED AND JUDGMENT AWARDED TO PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action properly laid a proper foundation at trial for the admission of documents making out a prima facie case. Therefore the action should not have been dismissed and a judgment in favor of plaintiff should have been entered. At trial plaintiff established standing to bring the action, the defendant’s default, and compliance with the notice provisions of RPAPL 1304. Bank of Am., N.A. v Bloom, 2022 NY Slip Op 00839, Second Dept 2-9-22

February 9, 2022

Appeals, Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

THE AFFIDAVITS DID NOT PROVE THE RPAPL 1304 WAS ACTUALLY MAILED TO DEFENDANTS; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of compliance with the notice requirements of RPAPL 1304 was insufficient. Therefore plaintiff in this foreclosure action was not entitled to summary judgment:

Since HSBC failed to provide evidence of the actual mailing, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, it failed to establish, prima facie, its strict compliance with RPAPL 1304 … . MTGLQ Invs., L.P. v Cutaj, 2022 NY Slip Op 00858, Second Dept 2-9-22

Similar issues and result in U.S. Bank N.A. v Adams, 2022 NY Slip Op 00896, Second Dept 2-9-22

Similar issues and result in Wells Fargo Bank, N.A. v Davidson, 2022 NY Slip Op 00901, Second Dept 2-9-22 which also held the bank’s failure to comply with the “one envelope” rule for the RPAPL 1304 notice can be raised for the first time on appeal.

February 9, 2022

Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

THE RPAPL 1304 NOTICE DID NOT INLUDE A LIST OF FIVE HOUSING COUNSELING AGENCIES SERVING THE COUNTY WHERE THE PROPERTY IS LOCATED; THE BANK’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the RPAPL 1304 required that the notice of foreclosure include a list of five housing counseling agencies serving the county were the property is located:

… [T]he plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304, as it failed to demonstrate that the 90-day notices it sent to the defendants contained the requisite list of five housing counseling agencies serving the county in which the subject property is located … . In support of its motion, the plaintiff submitted the notices pursuant to RPAPL 1304, annexed to which was a list of five agencies. Four of the agencies were located in Queens, and one of the agencies, Hispanic Brotherhood of Rockville Centre, Inc., was located in Nassau County. Thus, the plaintiff failed to establish, prima facie, that all five of the agencies served Queens County. U.S. Bank N.A. v Gordon, 2022 NY Slip Op 00898, Second Dept 2-9-22

February 9, 2022

Civil Procedure, Contract Law, Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL), Uniform Commercial Code

THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE AND RPAPL 1304 (SECOND DEPT).

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

Although the plaintiff attached to the complaint copies of the note and an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . …

… [T}he plaintiff failed to demonstrate, prima facie, that a notice of default in accordance with sections 15 and 22 of the mortgage was properly transmitted to the defendant prior to the commencement of this action … . …

… [T]he plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. The plaintiff failed to provide proof of the actual mailing of the 90-day notice required by RPAPL 1304, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Further, although Victoria Wolff, an assistant secretary for the plaintiff, stated in an affidavit that the notices required under RPAPL 1304 were mailed, she did not aver that she had mailed the notices herself or otherwise claim to have personal knowledge of the mailing … . Raymond James Bank, NA v Guzzetti, 2022 NY Slip Op 00888, Second Dept 2-9-22

February 9, 2022

Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, INCLUDING THE “SINGLE ENVELOPE” RULE (SECOND DEPT).

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

… [P]laintiff failed to demonstrate … that it strictly complied with the mailing requirements of RPAPL 1304. The affidavit of Kyle Lucas, a senior loan analyst employed by the plaintiff, did not make the requisite showing that Lucas was familiar with the plaintiff’s mailing practices and procedures, and “therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … .

The plaintiff also failed to establish 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)” … . … [T]he plaintiff acknowledged that the envelope … , which contained the requisite notice under RPAPL 1304, also included other information in two notices pertaining to the Federal Fair Debt Collection Practices Act and bankruptcy. Ocwen Loan Servicing, LLC v Sirianni, 2022 NY Slip Op 00677, Second Dept 2-2-22

February 2, 2022

Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate defendant’s default and did not demonstrate compliance with the notice provisions of RPAPL 1304:

… [I]n attempting to establish the defendant’s default in payment, the plaintiff relied on the affidavit of Jessica Fernandez, an assistant vice president of Bayview, the plaintiff’s assignee. * * * … [T]he payment history was a record made by Chase, not Bayview. … Fernandez did not attest that she was personally familiar with Chase’s record-keeping practices and procedures … or that records provided by Chase were incorporated into Bayview’s records and routinely relied upon by Bayview in its own business … . …Fernandez failed to lay a proper foundation for the admission of the payment history and her assertions based on that record were inadmissible … .

The plaintiff also failed to establish, prima facie, its strict compliance with RPAPL 1304. RPAPL 1304 provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower” … . “The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower” … . …

In support of its motion, the plaintiff submitted a copy of a 90-day notice from the plaintiff, addressed to the defendant at the premises address. … [T]he notice … does not include the list of at least five housing agencies that served the region where the defendant resided … . … [T]he plaintiff failed to submit proof of the actual mailing of the notice, or 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 … . JPMorgan Chase Bank, N.A. v Deblinger, 2022 NY Slip Op 00410, Second Dept 1-26-22

January 26, 2022

Civil Procedure, Contract Law, Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

THE BANK DID NOT DEMONSTRATE: (1) STANDING TO BRING THE FORECLOSURE ACTION; (2) COMPLIANCE WITH THE NOTICE PROVISION IN THE MORTGAGE; AND (3), COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure action and did not demonstrate compliance with the notice provision of the mortgage and RPAPL 1304:

… [T]he record does not reflect that a copy of the endorsed note was attached to the summons and complaint when the action was commenced … . Moreover, the plaintiff failed to establish its status as the holder of the note at the time of commencement of the action … . * * *

The plaintiff failed to establish … it complied with the condition precedent contained in the mortgage agreement, which required that it provide the defendant with a notice of default prior to demanding payment of the loan in full. The evidence submitted by the plaintiff did not establish that a notice of default was mailed by first-class mail or actually delivered to the defendant’s “notice address” if sent by other means, as required by the terms of the mortgage agreement … . [Plaintiff] failed to provide proof of a standard office mailing procedure and provided no independent evidence of the actual mailing … . For the same reason, the plaintiff failed to establish … it sent the defendant the required notice under RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Crosby, 2022 NY Slip Op 00402, Second Dept 1-26-22

January 26, 2022

Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

STRICT COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 WAS NOT DEMONSTRATED; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof surrounding the mailing of the RPAPL 1304 notice was insufficient:

… “[T]he plaintiff failed to provide evidence of the actual mailing, ‘or 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,’ the plaintiff failed to establish its strict compliance with RPAPL 1304” … . Citimortgage, Inc. v Leitman, 2022 NY Slip Op 00397, Second Dept 1-26-22

January 26, 2022

THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION WAS INSUFFICIENT; THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT WERE NOT PRODUCED (SECOND DEPT).

SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE ACTION AFTER TRIAL ON THE GROUND PLAINTIFF DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSION OF THE DOCUMENTS REQUIRED TO MAKE OUT A PRIMA FACIE CASE; COMPLAINT REINSTATED AND JUDGMENT AWARDED TO PLAINTIFF (SECOND DEPT).

THE AFFIDAVITS DID NOT PROVE THE RPAPL 1304 WAS ACTUALLY MAILED TO DEFENDANTS; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

THE RPAPL 1304 NOTICE DID NOT INLUDE A LIST OF FIVE HOUSING COUNSELING AGENCIES SERVING THE COUNTY WHERE THE PROPERTY IS LOCATED; THE BANK’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE AND RPAPL 1304 (SECOND DEPT).

PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, INCLUDING THE “SINGLE ENVELOPE” RULE (SECOND DEPT).

THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

THE BANK DID NOT DEMONSTRATE: (1) STANDING TO BRING THE FORECLOSURE ACTION; (2) COMPLIANCE WITH THE NOTICE PROVISION IN THE MORTGAGE; AND (3), COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

STRICT COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 WAS NOT DEMONSTRATED; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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