| Wells Fargo Bank, N.A. v Lewczuk |
| 2017 NY Slip Op 06318 [153 AD3d 890] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Respondent, v AdamLewczuk et al., Appellants, et al., Defendants. |
Alice A. Nicholson, Brooklyn, NY, for appellants.
Stein, Wiener & Roth, LLP (Reed Smith, LLP, New York, NY [Andrew B. Messite andKerren B. Zinner], of counsel), for respondent.
Appeal from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), dated May26, 2015. The order, insofar as appealed from, upon a decision of that court dated December 1,2014, granted those branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against the defendants Adam Lewczuk and Edyta Lewczuk and foran order of reference.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the plaintiff's motion which were for summary judgment on the complaint insofar asasserted against the defendants Adam Lewczuk and Edyta Lewczuk and for an order of referenceare denied.
On May 6, 2002, Adam Lewczuk and Edyta Lewczuk (hereinafter together the defendants)executed a note in the sum of $376,950 in favor of IndyMac Bank, FSB (hereinafter IndyMac),which was secured by a mortgage on residential property located in Queens (hereinafter thepremises). By written assignment dated May 20, 2003, IndyMac assigned the mortgage toMortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for BNYMortgage Company, LLC (hereinafter BNY). On June 20, 2003, the defendants executed asecond note in the sum of $39,635 in favor of BNY, secured by a second mortgage on thepremises. Also on June 20, 2003, the defendants executed a "Consolidation, Extension andModification Agreement" (hereinafter CEMA), pursuant to which the two mortgage loanbalances were consolidated into a single lien in the sum of $413,000. Annexed to the CEMAwere a consolidated note and a consolidated mortgage. On November 18, 2010, MERS, asnominee for BNY, assigned the consolidated mortgage to Wells Fargo Bank, N.A. (hereinafterthe plaintiff).
On December 1, 2010, the plaintiff commenced this action to foreclose the mortgage againstthe defendants, among others. The defendants served an answer in which they asserted asaffirmative defenses, inter alia, that the plaintiff lacked standing and that the plaintiff failed tocomply with RPAPL 1304. In May 2014, the plaintiff moved, among other things, for summaryjudgment on the complaint and for an order of reference. In an order dated May 26, 2015, theSupreme Court, inter alia, granted those branches of the plaintiff's motion which were forsummary judgment on the complaint insofar as asserted against the defendants and for an orderof reference. The defendants appeal from the order. We reverse the order insofar as appealedfrom.
Contrary to the defendants' contention, the Supreme Court properly determined that theplaintiff had standing to commence this action. Where, as here, the plaintiff's standing is placedin issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing (see JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d 643, 644 [2016]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]). Aplaintiff establishes its standing in a mortgage foreclosure action where it is the holder orassignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor,25 NY3d 355, 361 [2015];Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684 [2016]). "Either awritten assignment of the underlying note or the physical delivery of the note . . . issufficient to transfer the obligation, and the mortgage passes with the debt as an inseparableincident" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see JPMorgan Chase Bank,N.A. v Weinberger, 142 AD3d at 644-645; Deutsche Bank Natl. Trust Co. v Weiss, 133 AD3d 704, 705[2015]; Kondaur Capital Corp. vMcCary, 115 AD3d 649, 650 [2014]).
Here, the plaintiff established, prima facie, that it had standing to commence the action bysubmitting the affidavit of its vice president, who averred that the plaintiff was the holder of theconsolidated note and the consolidated mortgage at the time of commencement of the action,along with a copy of the consolidated note containing an endorsement from BNY, the originatorof the consolidated note, to Alliance Mortgage Company (hereinafter Alliance), and anendorsement in blank from Alliance (seeCitimortgage, Inc. v Klein, 140 AD3d 913, 915 [2016]; JPMorgan Chase Bank, N.A. v Mantle,134 AD3d 903, 904 [2015]; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674,674 [2007]). In opposition to the plaintiff's prima facie showing, the defendants failed to raise atriable issue of fact.
RPAPL 1304 (1), which applies to home loans, provides that "at least ninety days before alender, an assignee or a mortgage loan servicer commences legal action against the borrower,. . . including mortgage foreclosure, such lender, assignee or mortgage loan servicershall give notice to the borrower." The statute sets forth the requirements for the content of suchnotice (see id.), and provides that such notice must be sent by registered or certified mailand by first-class mail to the last known address of the borrower and to the subject residence(see RPAPL 1304 [2]). "[P]roper service of RPAPL 1304 notice on the borrower orborrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiffhas the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011];see Citibank, N.A. v Wood, 150AD3d 813, 814 [2017]; FlagstarBank, FSB v Damaro, 145 AD3d 858, 860 [2016]).
Here, the plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304(see Wells Fargo Bank, N.A. vTrupia, 150 AD3d 1049 [2017]). In support of its motion, the plaintiff submitted, interalia, the affidavit of Rodolfo Arias, its vice president of loan documentation, along with a copy ofa 90-day notice to the defendants dated May 9, 2010, and Proof of Filing Statements from theNew York State Department of Financial Services, demonstrating that the plaintiff filed theinformation required by RPAPL 1306. Arias stated in his affidavit that the letter dated May 9,2010, was forwarded to the defendants "by regular and certified mail," and annexed to hisaffidavit a copy of the letter. The letter contained a bar code with a 20-digit number below it, butno language indicating that a mailing was done by first-class or certified mail, or even that amailing was done by the U.S. Postal Service (see Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049 [2017]).While mailing may be proved by documents meeting the requirements of the business recordsexception to the rule against hearsay, Arias did not make the requisite showing that he was"familiar with the plaintiff's mailing practices and procedures, and therefore did not establishproof of a standard office practice and procedure designed to ensure that items are properlyaddressed and mailed" (id. at 1050-1051; see Citibank, N.A. v Wood, 150 AD3d 813 [2017]; CitiMortgage, Inc. v Pappas, 147 AD3d900, 901 [2017]). The plaintiff's submission of the Proof of Filing Statements pursuant toRPAPL 1306 was also unavailing. While the statements constituted some proof that a mailingwas done, they contained no information indicating that the mailing was done by both registeredor certified mail and first-class mail in accordance with RPAPL 1304.
Since the plaintiff failed to establish, prima facie, that it strictly complied with the [*2]requirements of RPAPL 1304, the Supreme Court should havedenied those branches of its motion which were for summary judgment on the complaint insofaras asserted against the defendants and for an order of reference, regardless of the sufficiency ofthe opposing papers (see Wells FargoBank, N.A. v Trupia, 150 AD3d 1049 [2017]; Citibank, N.A. v Wood, 150AD3d at 814). Rivera, J.P., Leventhal, Austin and Christopher, JJ., concur.