| Wells Fargo Bank, NA v Mandrin |
| 2018 NY Slip Op 02826 [160 AD3d 1014] |
| April 25, 2018 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, NA, Respondent, v EdwardMandrin, Appellant, et al., Defendant. |
R. David Marquez, P.C., Mineola, NY, for appellant.
Knuckles, Komosinski & Elliott, LLP, Elmsford, NY (John E. Brigandi of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Edward Mandrin appeals from (1) anorder of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 11, 2014, (2)an order of reference of the same court entered June 12, 2014, and (3) a judgment of foreclosureand sale of the same court entered December 17, 2015. The order entered June 11, 2014, insofaras appealed from, granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the defendant Edward Mandrin, to strikethat defendant's answer, and for an order of reference. The order of reference entered June 12,2014, insofar as appealed from, appointed a referee. The judgment of foreclosure and saleentered December 17, 2015, upon the orders, directed the sale of the subject premises.
Ordered that the appeals from the order entered June 11, 2014, and the order of referenceentered June 12, 2014, are dismissed; and it is further,
Ordered that the judgment of foreclosure and sale is reversed, on the law, with costs, thosebranches of the plaintiff's motion which were for summary judgment on the complaint insofar asasserted against the defendant Edward Mandrin, to strike that defendant's answer, and for anorder of reference, are denied, and the order entered June 11, 2014, and the order of referenceentered June 12, 2014, are modified accordingly.
The defendant Edward Mandrin defaulted on a mortgage loan secured by his home in NewHyde Park (hereinafter the subject premises). The plaintiff, as the holder of the note, commencedthis action against Mandrin, among others, to foreclose the mortgage on the subject premises.Mandrin answered the complaint and asserted the affirmative defenses of, inter alia, lack ofstanding and failure to comply with the 90-day notice requirement of RPAPL 1304. Prior to thecompletion of discovery, the plaintiff moved, among other things, for summary judgment on thecomplaint insofar as asserted against Mandrin, to strike his answer, and for an order of reference.By order entered June 11, 2014, the Supreme Court, inter alia, granted those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as asserted againstMandrin, to strike his answer, and for an order of reference. By order of reference entered June12, [*2]2014, the court, among other things, appointed a referee.By judgment of foreclosure and sale entered December 17, 2015, the court directed the sale ofthe subject premises. Mandrin appeals from the orders and the judgment.
The appeals from the order entered June 11, 2014, and the order of reference entered June 12,2014, respectively, must be dismissed, as the right of direct appeal therefrom terminated with theentry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d241 [1976]). The issues raised on the appeals from the orders are brought up for review and havebeen considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a] [1]).
"When a plaintiff's standing to commence a foreclosure action is at issue, it is incumbentupon the plaintiff to prove its standing to be entitled to relief" (Emigrant Mtge. Co., Inc. v Persad, 117AD3d 676, 676 [2014]). A plaintiff establishes its standing in a mortgage foreclosure actionby demonstrating that, when the action was commenced, it was either the holder or assignee ofthe underlying note (see Aurora LoanServs., LLC v Taylor, 25 NY3d 355, 360-362 [2015]; Hudson City Sav. Bank v Genuth, 148AD3d 687, 689 [2017]). Here, the plaintiff established its standing with proof that it was theholder of the note at the time that the action was commenced (see Generation Mtge. Co. v Medina, 138 AD3d 688, 689 [2016]; Wachovia Mtge. Corp. v Lopa, 129AD3d 830, 831 [2015]; EmigrantMtge. Co., Inc. v Persad, 117 AD3d 676 [2014]). In opposition, Mandrin failed to raise atriable issue of fact.
However, reversal is required in light of the plaintiff's failure to establish strict compliancewith the 90-day notice requirement of RPAPL 1304. " '[P]roper service of RPAPL 1304notice on the borrower or borrowers is a condition precedent to the commencement of aforeclosure action, and the plaintiff has the burden of establishing satisfaction of thiscondition' " (Wells Fargo Bank,N.A. v Trupia, 150 AD3d 1049, 1050 [2017], quoting Aurora Loan Servs., LLC v Weisblum,85 AD3d 95, 106 [2011]). "The statute requires that such notice must be sent by registeredor certified mail, and also by first-class mail, to the last known address of the borrower"(Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050; see RPAPL 1304). Byrequiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered orcertified mail and also by first-class mail, the Legislature implicitly provided the means for theplaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing(see Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050). Proof of the requisite mailingis established with proof of the actual mailings, such as affidavits of mailing or domestic returnreceipts with attendant signatures, or proof of a standard office mailing procedure designed toensure that items are properly addressed and mailed, sworn to by someone with personalknowledge of the procedure (seeM&T Bank v Joseph, 152 AD3d 579 [2017]; Wells Fargo Bank, N.A. vTrupia, 150 AD3d at 1050-1051; Citibank, N.A. v Wood, 150 AD3d 813, 814 [2017]; CitiMortgage, Inc. v Pappas, 147 AD3d900, 901-902 [2017]; FlagstarBank, FSB v Mendoza, 139 AD3d 898, 900 [2016]).
Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of serviceor other proof of mailing by the post office establishing that it properly served Mandrin pursuantto RPAPL 1304. The unsubstantiated and conclusory statement of a vice president of the plaintiffthat a 90-day pre-foreclosure notice "was forwarded by regular and certified mail" to Mandrin "infull compliance with all requirements of RPAPL § 1304" was insufficient toestablish that the notice was actually mailed to Mandrin by first-class and certified mail (see M&T Bank v Joseph, 152AD3d 579 [2017]; Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050-1051;Citibank, N.A. v Wood, 150 AD3d at 814; Cenlar, FSB v Censor, 139 AD3d 781, 782-783 [2016]). Becausethe plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, that branch ofits motion which was for summary judgment on the complaint insofar as asserted againstMandrin should have been denied, regardless of the sufficiency of Mandrin's opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The parties' remaining contentions are either without merit or need not be addressed in lightof our determination. Rivera, J.P., Cohen, Miller and Christopher, JJ., concur.