| U.S. Bank N.A. v Henderson |
| 2018 NY Slip Op 05071 [163 AD3d 601] |
| July 5, 2018 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee for the Pooling andServicing Agreement Dated as of November 1, 2005, MASTR Asset-Backed Securities Trust2005-FRE1 Mortgage Pass-Through Certificates, Series 2005-FRE1,Respondent, v Nzinga E. Foluke Henderson, Appellant, et al.,Defendants. |
Cardenas Islam & Associates, PLLC, Jamaica, NY (Barak P. Cardenas of counsel), forappellant.
Leopold & Associates, PLLC (Greenberg Traurig, LLP, New York, NY [Daniel R.Milstein and Marissa Banez], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Nzinga E. Foluke Henderson appealsfrom an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered June 29,2015. The order, insofar as appealed from, granted those branches of the plaintiff's motion whichwere for summary judgment on the complaint insofar as asserted against that defendant, to strikeher answer, and to appoint a referee to compute the amount due and owing, and denied her crossmotion pursuant to CPLR 3212 (f), in effect, for further discovery.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the plaintiff's motion which were for summary judgment on the complaintinsofar as asserted against the defendant Nzinga E. Foluke Henderson, to strike her answer, andto appoint a referee to compute the amount due and owing, and substituting therefor a provisiondenying those branches of the motion; as so modified, the order is affirmed insofar as appealedfrom, with costs to the defendant Nzinga E. Foluke Henderson.
In August 2005, the defendant Nzinga E. Foluke Henderson (hereinafter the defendant)executed a promissory note in the sum of $382,500 in favor of Fremont Investment & Loanwhich was secured by a mortgage encumbering residential property in St. Albans. On or aboutApril 1, 2011, the plaintiff, the alleged holder of the note, commenced this action to foreclose themortgage, claiming that the defendant defaulted under the terms of the note by failing to makethe payment due on April 1, 2010, and all payments due thereafter. The defendant served ananswer asserting, inter alia, the affirmative defenses of lack of standing and failure to complywith RPAPL 1304. In January 2015, the plaintiff moved, inter alia, for summary judgment on thecomplaint, to strike the defendant's answer, and to appoint a referee to compute the amount dueand owing. The defendant opposed the plaintiff's motion and cross-moved pursuant to CPLR3212 (f), in effect, for further discovery. The Supreme Court granted the plaintiff's motion anddenied the defendant's cross motion. The defendant appeals.
To establish prima facie entitlement to judgment as a matter of law in an action to foreclose amortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. vAbdan, 131 AD3d 1001 [2015]; HSBC Bank, USA v Hagerman, 130 AD3d 683, 683-684 [2015];Plaza Equities, LLC v Lamberti, 118AD3d 688, 689 [2014]).
Furthermore, in a residential foreclosure action, a plaintiff moving for summary judgmentmust tender "sufficient evidence demonstrating the absence of material issues as to its strictcompliance with RPAPL 1304" (AuroraLoan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011]). RPAPL 1304 (1), whichapplies to home loans, provides that "at least ninety days before a lender, an assignee or amortgage loan servicer commences legal action against the borrower . . . includingmortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to theborrower." The statute sets forth the requirements for the content of such notice (see id.),and provides that such notice must be sent by registered or certified mail and by first-class mailto 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 or borrowers is a conditionprecedent to the commencement of a foreclosure action, and the plaintiff has the burden ofestablishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85AD3d at 106; see Citibank, N.A. vWood, 150 AD3d 813, 814 [2017]; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860 [2016]).
Here, the plaintiff failed to establish, prima facie, that it complied with the requirements ofRPAPL 1304 (see M&T Bank vJoseph, 152 AD3d 579 [2017]; CitiMortgage, Inc. v Pappas, 147 AD3d 900 [2017]; Bank of N.Y. Mellon v Aquino, 131AD3d 1186, 1186 [2015]; DeutscheBank Natl. Trust Co. v Spanos, 102 AD3d 909, 910 [2013]). In moving for summaryjudgment, the plaintiff submitted the affidavit of Timeka J. Motlow, a representative of its loanservicer, who stated that "[t]he records I have reviewed indicate that the attached 90-daypre-foreclosure notice was mailed to [the defendant] at the property address of the real estate atissue herein and to the last know address of the borrower(s)." However, Motlow did not havepersonal knowledge of the purported mailing and failed to make the requisite showing that shewas familiar with the plaintiff's mailing practices and procedures, and therefore did not establish"proof of a standard office practice and procedure designed to ensure that items are properlyaddressed and mailed" (Wells FargoBank, N.A. v Trupia, 150 AD3d 1049, 1050-1051 [2017]; see Wells Fargo Bank, N.A. vLewczuk, 153 AD3d 890 [2017]; Citibank, N.A. v Wood, 150 AD3d 813 [2017]; CitiMortgage,Inc. v Pappas, 147 AD3d at 901).
Moreover, the plaintiff failed to establish, prima facie, that it had standing to commence theaction (see Arch Bay Holdings, LLC vAlbanese, 146 AD3d 849 [2017]). Because the plaintiff failed to establish, prima facie,its entitlement to judgment as a matter of law on the issue of standing, we need not consider thesufficiency of the defendant's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]).
The defendant's remaining contentions are without merit. Austin, J.P., Roman, Miller andConnolly, JJ., concur.