| Bank of Am., N.A. v Wheatley |
| 2018 NY Slip Op 01175 [158 AD3d 736] |
| February 21, 2018 |
| Appellate Division, Second Department |
[*1](February 21, 2018)
| Bank of America, National Association, as Successor by Mergerto LaSalle Bank National Association, as Trustee for Certificateholders of Bear Stearns AssetBacked Securities I LLC, Asset-Backed Certificates, Series 2007-HE5,Appellant, v Cecil Wheatley et al., Defendants. |
Parker Ibrahim & Berg, New York, NY (Ben Z. Raindorf of counsel), for appellant.
Appeal from an order of the Supreme Court, Queens County (Frederick D. R. Sampson, J.),entered April 12, 2016. The order denied the plaintiff's motion, inter alia, for summary judgmenton the complaint and for an order of reference.
Ordered that the order is affirmed, without costs or disbursements.
On March 19, 2007, the defendant Cecil Wheatley (hereinafter the defendant) executed anote in the sum of $242,000 in favor of Bravo Credit. The note was secured by a mortgage onresidential property located in Queens County. In January 2010, Mortgage ElectronicRegistration Systems, Inc. (hereinafter MERS), as nominee for Bravo Credit, assigned themortgage to the plaintiff.
In March 2011, the plaintiff commenced this action against, among others, the defendant.The defendant served an answer in which he asserted various affirmative defenses, including thatthe plaintiff lacked standing and that the plaintiff failed to comply with RPAPL 1304, and twocounterclaims. The plaintiff moved, inter alia, for summary judgment on the complaint and for anorder of reference. The defendant did not oppose the motion. By order entered April 12, 2016,the Supreme Court denied the motion. The plaintiff appeals, and we affirm.
Contrary to the Supreme Court's determination, the plaintiff established, prima facie, that ithad standing to commence this action. A plaintiff establishes its standing in a mortgageforeclosure action by demonstrating that when the action was commenced, it was either theholder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362[2015]; U.S. Bank, N.A. v Noble,144 AD3d 786, 787 [2016]; U.S.Bank, N.A. v Collymore, 68 AD3d 752, 753-754 [2009]). "Either a written assignmentof the underlying note or the physical delivery of the note prior to the commencement of theforeclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt asan inseparable incident" (Deutsche BankTrust Co. Ams. v Garrison, 147 AD3d 725, 726 [2017]; see U.S. Bank N.A. v Saravanan, 146AD3d 1010, 1011 [2017]; DeutscheBank Natl. Trust Co. v Logan, 146 AD3d 861, 862 [2017]).
Here, the plaintiff established, prima facie, its standing as the holder of the note bydemonstrating that the note was in its possession at the time it commenced the action, asevidenced [*2]by its attachment of the note, which contained anendorsement in blank by Bravo Credit, the original lender, to the summons and complaint at thetime the action was commenced (seeU.S. Bank N.A. v Sabloff, 153 AD3d 879 [2017]; Deutsche Bank Natl. Trust Co. v Carlin, 152 AD3d 491, 493[2017]; Wells Fargo Bank, N.A. vThomas, 150 AD3d 1312, 1313 [2017]; U.S. Bank N.A. v Saravanan, 146 AD3dat 1011; Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d at 862; JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d 643, 645 [2016]).
However, the Supreme Court properly determined that the plaintiff failed to establish, primafacie, its compliance with RPAPL 1304. RPAPL 1304 (1) provides that, "at least ninety daysbefore a lender, an assignee or a mortgage loan servicer commences legal action against theborrower, . . . including mortgage foreclosure, such lender, assignee or mortgageloan servicer shall give notice to the borrower." RPAPL 1304 (1) sets forth the requirements forthe content of such notice and further provides that such notice must be sent by registered orcertified mail and by first-class mail to the last known address of the borrower (seeRPAPL 1304 [2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers isa condition precedent to the commencement of a foreclosure action, and the plaintiff has theburden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011];see CitiMortgage, Inc. v Pappas,147 AD3d 900, 901 [2017]; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910[2013]).
Contrary to the plaintiff's contention, since the defendant raised the issue of compliance withRPAPL 1304 as an affirmative defense in his answer, the plaintiff was required to make a primafacie showing of compliance with RPAPL 1304 (cf. Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830 [2016]; U.S. Bank N.A. v Carey, 137 AD3d894, 896 [2016]). The plaintiff failed to make the requisite showing. In support of itsmotion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select PortfolioServicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day noticeaddressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from theNew York State Banking Department. "While mailing may be proved by documents meeting therequirements of the business records exception" to the hearsay rule, Benight, in her affidavit, didnot aver that she was familiar with the plaintiff's mailing practices and procedures, and thereforedid not establish proof of a standard office practice and procedure designed to ensure that itemsare properly addressed and mailed (CitiMortgage, Inc. v Pappas, 147 AD3d at 901; see Wells Fargo Bank, N.A. v Trupia,150 AD3d 1049, 1050 [2017]). Moreover, the plaintiff failed to demonstrate, prima facie,that the notices included a list of five housing counseling agencies, as required by the statute(see RPAPL 1304 [2]). Although Benight stated in her affidavit that the notices includedsuch a list, the copies of the notices submitted merely included information about contacting ahotline that would provide "free personalized advice from housing counseling agencies certifiedby the U.S. Department of Housing and Urban Development."
Since the plaintiff failed to demonstrate its compliance with RPAPL 1304, the SupremeCourt properly denied its motion for summary judgment (see Wells Fargo Bank, N.A. vTrupia, 150 AD3d at 1051; Citibank, N.A. v Wood, 150 AD3d 813, 814 [2017];CitiMortgage, Inc. v Pappas, 147 AD3d at 902). Rivera, J.P., Cohen, Hinds-Radix andBrathwaite Nelson, JJ., concur.