| Flagstar Bank, FSB v Jambelli |
| 2016 NY Slip Op 04384 [140 AD3d 829] |
| June 8, 2016 |
| Appellate Division, Second Department |
[*1]
| Flagstar Bank, FSB, Appellant, v LucreziaJambelli et al., Defendants. |
Stiene & Associates, P.C., Huntington, NY (Charles W. Marino of counsel), forappellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Nassau County (Adams, J.), dated January 30, 2015, which denied,without prejudice, that branch of its unopposed motion which was pursuant to RPAPL1321 for an order of reference.
Ordered that the order is reversed, on the law, without costs or disbursements, andthat branch of the plaintiff's unopposed motion which was pursuant to RPAPL 1321 foran order of reference is granted.
On September 24, 2009, the defendants Lucrezia Jambelli and Raffaele Martinoobtained a home loan from the plaintiff and executed a note evidencing the loan. Thenote was secured by a mortgage on real property located in Massapequa (hereinafter thesubject property). The mortgage was executed by the defendants Lucrezia Jambelli,Raffaele Martino, and Myslym Jambelli (hereinafter collectively the defendants). InJanuary 2011, the defendants defaulted on their payment obligations. On December 8,2011, the plaintiff commenced this action to foreclose the mortgage and thereafter servedthe defendants with the summons and complaint. Annexed to the complaint were copiesof the note, mortgage, assignment of mortgage, and notices to each of the defendantspursuant to RPAPL 1304. The defendants failed to appear or answer the complaint. InAugust 2014, the plaintiff moved for an order of reference, for leave to enter a defaultjudgment, and for leave to amend the caption. The plaintiff and the defendants,appearing by counsel, executed a written stipulation dated August 28, 2014, adjourningthe return date of the motion to October 14, 2014. Despite the adjournment, thedefendants neither opposed the motion nor cross-moved for other relief. The SupremeCourt denied, without prejudice, that branch of the motion which was for an order ofreference on the ground that the plaintiff failed to demonstrate that it had complied withthe pre-foreclosure notice requirements of RPAPL 1304. The plaintiff appeals.
Where a loan is a home loan for the borrower's principal residence (seeRPAPL 1304 [5] [b]), the mortgage creditor contemplating a mortgage foreclosure actionis required, pursuant to RPAPL 1304, to serve the borrower with notice of his or herdefault in a specified form by registered or certified mail and first class mail at least 90days prior to the commencement of the [*2]action(see RPAPL 1304 [2]). Compliance with RPAPL 1304 is a condition precedentto the commencement of a foreclosure action (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95,106 [2011]), but failure to comply with RPAPL 1304 is not jurisdictional (see U.S. Bank N.A. v Carey,137 AD3d 894, 896 [2016];Pritchard v Curtis, 101 AD3d 1502, 1505 [2012]). Rather, it is a defense(see RPAPL 1302 [2]) which may be raised at any time (see U.S. Bank N.A. vCarey, 137 AD3d at 896;Citimortgage, Inc. v Espinal, 134 AD3d 876 [2015]; Aurora Loan Servs.,LLC v Weisblum, 85 AD3d at 105). However, in this case, that defense has neverbeen raised by the defendants, who failed to appear or answer the complaint, and failedto oppose the plaintiff's motion. Therefore, the plaintiff was not required to disprove thatdefense (see U.S. Bank N.A. v Carey, 137 AD3d at 896; PHH Mtge. Corp. v Celestin,130 AD3d 703 [2015]). Furthermore, the plaintiff established, prima facie, itsentitlement to an order of reference by submitting the mortgage, the unpaid note, thecomplaint setting forth the facts establishing the claim, and evidence that the defendantsdefaulted on their payment obligations and failed to appear or answer the complaintwithin the time allowed (see RPAPL 1321; U.S. Bank N.A. v Norgriff, 131 AD3d 527, 528 [2015]; Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225, 1226 [2014]). The defendants, who failed torespond to the plaintiff's motion, despite being duly served with the motion papers andreceiving an adjournment of the return date, thereby failed to assert any viable defenses(see NationStar Mtge., LLC vSilveri, 126 AD3d 864, 865 [2015]). Accordingly, the Supreme Court erred indenying, without prejudice, that branch of the plaintiff's unopposed motion which wasfor an order of reference. Dillon, J.P., Cohen, Maltese and Barros, JJ., concur.