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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

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

Although the RPAPL 1304 notices were allegedly mailed from New York by the same law firm that filed the summary judgment motion on behalf of the plaintiff, no one from that law firm provided an affidavit of mailing, or any other evidentiary proof in admissible form to establish that the mailing was properly completed. Instead, the plaintiff relied on the affidavit of Jennifer Jeudy, a contract management coordinator based in Palm Beach County, Florida, who averred, without further explanation, that the RPAPL 1304 notices “were mailed by first-class and certified mail, having been placed in an official depository under the exclusive case [sic] and custody of the United States Post Office in postage-paid properly addressed envelopes.” Since the plaintiff failed to provide sufficient proof of the actual mailing, and Jeudy did not attest to knowledge of the mailing practices of the plaintiff’s New York law firm, the plaintiff failed to establish its strict compliance with RPAPL 1304 … . Ocwen Loan Servicing, LLC v Malik, 2021 NY Slip Op 03596, Second Dept 6-9-21

Similar issues and result in U.S. Bank N.A. v Ehrlich, 2021 NY Slip Op 03627, Second Dept 6-9-21

 

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THE FORECLOSURE ACTION WAS PROPERLY DISMSSED AS TIME-BARRED; RPAPL 1304 IS A CONDITION PRECEDENT, NOT A STATUTORY PROHIBITION WHICH WOULD TOLL THE STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department, over a two-justice partial dissent, determined the defendant’s motion to dismiss the foreclosure action as time-barred, cancel the notice of pendency and cancel and discharge the mortgage (RPAPL article 15) was properly granted. The decision is too complex and factually specific to fairly summarize here (but well worth reading). One of the issues addressed was the difference between a statutory prohibition, which would toll the statute of limitations, and a condition precedent, which would not:

CPLR 204(a) provides that “[w]here the commencement of an action has been stayed by a court or by a statutory prohibition, the duration of the stay is not part of the time within which the action must be commenced” … . RPAPL 1304, which the plaintiff argues is a “statutory prohibition,” requires 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.” RPAPL 1304 describes the required content and manner of service of the notice. “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … .

“A statutory prohibition and a condition precedent are separate concepts” … . The salient feature of a “statutory prohibition” is the plaintiff’s lack of control. Since a plaintiff has complete control over the acts necessary to effectuate compliance with a condition precedent, a condition precedent is not a statutory prohibition … . Thus, because the plaintiff had control over when to serve the RPAPL 1304 notice, and could have done so at least 90 days prior to the expiration of the statute of limitations, RPAPL 1304 is not a statutory prohibition within the meaning of CPLR 204(a) … . Everhome Mtge. Co. v Aber, 2021 NY Slip Op 03574, Second Dept 6-9-21

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVIDE SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THE MORTGAGE (SECOND DEPT).

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

Although the plaintiff submitted copies of the 90-day notices purportedly sent to [defendant] Jimenez, the plaintiff failed to demonstrate, prima facie, that the notices were actually mailed, either through an affidavit of service, other proof of mailing by the post office, or evidence 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 unsubstantiated and conclusory assertion in an affidavit of a representative of the plaintiff’s loan servicer that the 90-day notice was sent in accordance with RPAPL 1304 is insufficient to establish that the notice was actually mailed to Jimenez by first-class and certified mail … . Moreover, the affiant based her assertions upon her review of unspecified business records without attaching any such business records to her affidavit … . “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … .

Similarly, the plaintiff failed to demonstrate, prima facie, that it complied with the notice of default provisions of the consolidated mortgage, which required the plaintiff to send a notice of default to Jimenez at the notice address by first-class mail and to provide a 30-day cure period. Copies of the notice without proof of mailing, along with the affidavit of a representative of the loan servicer averring, based upon her review of unspecified business records which were not attached to the affidavit, that such a notice of default was sent on an unspecified date, was insufficient to satisfy the plaintiff’s prima facie burden … .  Wilmington Trust, N.A. v Jimenez, 2021 NY Slip Op 03212, Second Dept 5-19-21

 

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THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of the bank’s compliance with the notice requirements of RPAPL 1304 in this foreclosure action was insufficient:

… [T]he plaintiff relied on an affidavit of James Green, a vice president of loan documentation for Wells Fargo, who averred that, based on his review of Wells Fargo’s business records, the required notice was sent by both certified mail and first-class mail. Green attached evidence of a certified article number, but did not attach any evidence of a first-class mailing. He did not aver that he had personal knowledge of the mailing, did not describe any standard office procedure designed to ensure that the notices are mailed, and did not attach domestic return receipts for the mailing … . Deutsche Bank Natl. Trust Co. v Ezeji, 2021 NY Slip Op 03164, Second Dept 5-19-2021

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THE MORTGAGE IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and the mortgage. Therefore the bank’s motion for summary judgment in this foreclosure action should not have been granted:

… [T]he plaintiff failed to submit proof of the actual mailings, such as the affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. Instead, the plaintiff relied on the affidavit of an employee of the plaintiff’s loan servicer, who did not attest that she had personal knowledge that the notices were mailed, or attest to a standard office mailing procedure designed to ensure that items are properly addressed and mailed … .

Likewise, relying on the same affidavit, the plaintiff failed to establish compliance with the requirements for a notice of default pursuant to sections 15 and 22 of the mortgage agreement. Statements in the employee’s affidavit, “which asserted that the notice of default was sent in accordance with the terms of the mortgage, [were] unsubstantiated and conclusory and . . . , even when considered together with the copy of the notice of default, failed to show that the required notice was in fact mailed by first class mail or actually delivered to the designated address if sent by other means, as required by the subject mortgage” … . U.S. Bank N.A. v Peykar, 2021 NY Slip Op 03077, Second Dept 5-12-21

 

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THE ESTATE WAS A NECESSARY PARTY IN THIS FORECLOSURE ACTION; SUPREME COURT SHOULD HAVE ORDERED THE JOINDER OF THE ESTATE INSTEAD OF DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court properly held that the estate was a necessary party in this foreclosure action, but failing the include the estate did no warrant dismissal of the complaint. Rather, the court should directed that the estate be joined as a party:

Supreme Court did not err in finding that the estate was a necessary defendant. “Pursuant to RPAPL 1311(1), ‘necessary defendants’ in a mortgage foreclosure action include, among others, ‘[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the courtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein'” … . Particularly where, as here, the plaintiff seeks a deficiency judgment, and alleges a default in payment subsequent to the death of the deceased mortgagor, the estate of the mortgagor is a necessary party to the foreclosure action … . However, dismissal of the complaint was not the proper remedy; rather, the proper remedy was to direct the joinder of the estate as a defendant (see CPLR 1001[b] …). BAC Home Loans Servicing, L.P. v Williams, 2021 NY Slip Op 02780, Second Dept 5-5-21

 

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PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND DID NOT PROVIDE SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate standing to bring the foreclosure action, the defendants properly raised plaintiff’s failure to comply with the notice requirements of RPAPL 1304 in opposition to the plaintiff’s summary judgment motion, and the plaintiff’s proof of compliance with the notice requirements was insufficient:

… [T]he plaintiff failed … to establish its standing to commence this action. The copy of the note submitted in support of the plaintiff’s motion contained two additional pages, the first entitled “Allonge to Note” and the second entitled “Note Allonge.” However, as the defendants correctly contend, the plaintiff did not submit any evidence to indicate that the purported allonges were so firmly affixed to the note so as to become a part thereof (see UCC 3-202[2] …). …

… [S]ince the proper service of a RPAPL 1304 notice is a condition precedent to the commencement of a foreclosure action, the defendants could properly raise this defense for the first time in their opposition to the plaintiff’s motion for summary judgment, and the burden of establishing prima facie compliance with the requirements of RPAPL 1304 was with the plaintiff … . …

… [I]n order to establish its compliance with the notice requirements of RPAPL 1304, the plaintiff submitted two affidavits from its “authorized signer,” Tracy A. Duck. However, contrary to the Supreme Court’s determination, neither affidavit was sufficient to establish the plaintiff’s strict compliance with the notice requirements of RPAPL 1304. Among other things, Duck did not aver that she was familiar with the mailing practices and procedures of the entity that purportedly sent the notices … . Moreover, the business records attached to Duck’s second affidavit were insufficient to establish compliance with RPAPL 1304 … . LNV Corp. v Almberg, 2021 NY Slip Op 02791, Second Dept 5-5-21

 

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A TAX FORECLOSURE PROCEEDING IS AN IN REM ACTION AGAINST THE PROPERTY, NOT THE PROPERTY OWNER; THEREFORE THE ACTION WAS NOT A NULLITY DESPITE THE DEATH OF THE OWNER (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the tax foreclosure proceeding was not a nullity and did not violate due process. The foreclosed restaurant belonged to plaintiff’s husband, who died in 2006. The treasurer of Ontario County followed all the proper procedures for notification of the tax foreclosure proceedings. Tax foreclosure is an in rem action to which there are no parties. So the argument that the action could not be brought against the deceased owner of the restaurant was rejected:

… [B]y statute, mortgagors are necessary party defendants to mortgage foreclosure actions (see RPAPL 1311 [1]). In contrast, a petition in a tax foreclosure proceeding relates only to the property and not any particular person (see RPTL 1123 [2] [a]). The distinction between in rem tax foreclosure proceedings and mortgage foreclosure actions with respect to the “parties” is critical. While an action or proceeding cannot be commenced against a dead person who, by necessity, is a named party to the action … , a tax foreclosure proceeding is not commenced against any person; it is commenced against the property itself. The owners are not necessary “parties” to the tax foreclosure proceeding; they are only “[p]arties entitled to notice” of the proceeding (RPTL 1125 [1] [a]; see RPTL 1123 [1], [2] [a]; cf. RPAPL 1131). As a result, the tax foreclosure proceeding was properly commenced even though decedent had died … , and there was no need to substitute someone for the dead owner (see CPLR 1015). Hetelekides v County of Ontario, 2021 NY Slip Op 02697, Fourth Dept 4-30-21

 

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NON-OWNER DID NOT HAVE STANDING TO MOVE TO VACATE AN ERIE COUNTY TAX FORECLOSURE SALE; THE RIGHT TO PAY THE DELINQUENT TAXES HAD BEEN EXTINGUISHED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the tax foreclosure sale of property owned by Black Rock to appellant should not have been vacated.  Respondent, Fedder, moved to vacate the sale. After County Court granted Fedder’s motion, the delinquent taxes were paid, the County issued a certificate of redemption to Black Rock, which then sold the property to Fedder:

… [T]his is not a mortgage foreclosure action, where the “equity of redemption” permits property owners “to redeem their property by tendering the full sum” owed before a valid sale is effectuated … . Here, instead, the right to pay the delinquent taxes by virtue of the equity of redemption was extinguished several months prior to Fedder’s motion by order to show cause, according to the ECTA [Erie County Tax Act], the public notice of foreclosure, and the terms of the judgment of foreclosure (see ECTA §§ 11-10.0, 11-12.0; see also RPTL art 11 … ). … [T]he purported redemption, the issuance of the certificate of redemption, and the purported sale and transfer of title from Black Rock to Fedder are nullities … . …

Fedder did not have standing to seek equitable relief in this case. Pursuant to ECTA § 7-10.0, the court could not set aside the sale to appellant “except upon a proceeding brought therefor by the owner of such real property within three months from the date of such sale.” Here, no such proceeding was brought. Instead, Fedder, a nonowner, filed a motion by order to show cause in this foreclosure action, and Black Rock, the owner, was not a party to the motion. In light of the ” ‘clear legislative intent’ ” of section 7-10.0 …, Fedder did not have standing to seek rescission of the sale.  Matter of Foreclosure of Tax Liens, 2021 NY Slip Op 02681, Fourth Dept 4-30-21

 

QUESTION OF FACT WHETHER DEFENDANT HAD A GOOD FAITH BELIEF THAT HE OWNED THE LAND WHERE TREES WERE HARVESTED; THEREFORE THE ISSUE WHETHER THE TREBLE DAMAGES ASPECT OF RPAPL 861 APPLIES MUST BE DETERMINED AT TRIAL (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant had a good faith belief that the land on which trees were harvested was his own property. Therefore whether plaintiff was entitled to treble damages pursuant to Real Property Actions and Proceedings Law (RPAPL) 861 must be determined at trial:

“[T]he current version of RPAPL 861 was enacted . . . in an effort to deter the illegal taking of timber by increasing the potential damages for that activity” … . If a person violates RPAPL 861 by cutting another person’s trees without the other’s consent, or by causing such cutting to occur, “an action may be maintained against such person for treble the stumpage value of the tree or timber or [$250] per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation” … . However, if a defendant in such an action “establishes[,] by clear and convincing evidence, that when the defendant committed the violation, he or she had cause to believe the land was his or her own, . . . then he or she shall be liable for the stumpage value or [$250] per tree, or both” … . Thus, “a trespasser’s good faith belief in a legal right to harvest timber does not insulate that person from the imposition of statutory damages, but merely saves him or her from having to pay the plaintiff treble damages” … . “Whether treble damages pursuant to RPAPL 861 are warranted is generally a factual determination” … . Although Gregory Miller testified that he intended to remove trees only from his own property, the record reflects that he did not have a survey of the property and relied on a determination of the boundary lines based on his own measurements. We conclude that a factual question exists, as Gregory Miller has failed at this stage of the proceedings to prove by clear and convincing evidence that he had a good faith belief that he owned the land at issue … . Holser v Geerholt, 2021 NY Slip Op 02578, Third Dept 4-29-21

 

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