| Bank of Am., N.A. v Bittle |
| 2019 NY Slip Op 00086 [168 AD3d 656] |
| January 9, 2019 |
| Appellate Division, Second Department |
[*1]
| Bank of America, N.A., Plaintiff, v Ivy R. Bittle,Appellant, et al., Defendants. Nationstar Mortgage, LLC, NonpartyRespondent. |
Ivy R. Bittle, Brooklyn, NY, appellant pro se.
Sandelands Eyet LLP, New York, NY (William C. Sandelands and Laurence P. Chirch ofcounsel), for plaintiff.
In an action to foreclose a mortgage, the defendant Ivy R. Bittle appeals from an order of theSupreme Court, Kings County (Debra Silber, J.), dated June 23, 2015. The order, insofar asappealed from, granted those branches of the motion of nonparty Nationstar Mortgage, LLC, asassignee of the plaintiff, which were for summary judgment on the complaint insofar as assertedagainst the defendant Ivy R. Bittle, to strike that defendant's answer and affirmative defenses, andfor an order of reference.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion of nonparty Nationstar Mortgage, LLC, as assignee of the plaintiff,which were for summary judgment on the complaint insofar as asserted against the defendant IvyR. Bittle, to strike that defendant's answer and affirmative defense alleging that the plaintifffailed to comply with the notice requirements of RPAPL 1304, and for an order of reference, andsubstituting therefor provisions denying those branches of the motion; as so modified, the orderis affirmed insofar as appealed from, with costs to the appellant.
In June 2013, the plaintiff commenced this action against the defendant Ivy R. Bittle(hereinafter the defendant) and others to foreclose a mortgage on residential property located inBrooklyn. The defendant, acting pro se, interposed an answer in which she asserted, inter alia, theaffirmative defense that the plaintiff failed to comply with the notice requirements of RPAPL1304. On April 15, 2014, the plaintiff purportedly assigned the mortgage and underlying note toNationstar Mortgage, LLC (hereinafter Nationstar). Thereafter, Nationstar, as assignee of theplaintiff, moved, inter alia, for summary judgment on the complaint, to strike the defendant'sanswer and affirmative defenses, and for an order of reference. The Supreme Court granted themotion. The defendant appeals.
"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its prima facie case through the production of the mortgage, the unpaid note, andevidence of default" (Deutsche BankNatl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015] [internal quotation marksomitted]). However, where, as here, a defendant raises the issue of compliance with RPAPL1304 as an affirmative defense, the moving party is also required to make a prima facie showingof strict compliance with RPAPL 1304 (see Bank of Am., N.A. v Wheatley, 158 AD3d 736, 737[2018]).
RPAPL 1304 provides, in relevant part, that a specific form of notice must be given to theborrower at least 90 days before the commencement of a mortgage foreclosure action (seeRPAPL 1304 [1]), and that such notice must be sent to the borrower "by registered or certifiedmail and also by first-class mail to the last known address of the borrower, and to the residencethat is the subject of the mortgage" (RPAPL 1304 [2]). By imposing these specific mailingrequirements, "the Legislature implicitly provided the means for the plaintiff to demonstrate itscompliance with the statute, i.e., by proof of the requisite mailing," which can be "establishedwith proof of the actual mailings, such as affidavits of mailing or domestic return receipts withattendant signatures, or proof of a standard office mailing procedure designed to ensure thatitems are properly addressed and mailed, sworn to by someone with personal knowledge of theprocedure" (Wells Fargo Bank, NA vMandrin, 160 AD3d 1014, 1016 [2018]).
Here, Nationstar relied on the affidavit of its employee, Michael Woods, who averred, inrelevant part, that "the 90-day notices required by statute were mailed to [d]efendant by regularand certified mail to the last known mailing address and to the property address on January 3,2013," and that the letters "were sent in separate envelopes from any other mailing or notice."However, the record contains a single 90-day notice, bearing the plaintiff's letterhead andaddressed to the defendant at the subject property, with no clear indication as to whether themailing was made by registered or certified mail, or by first-class mail. Moreover,Woods—who is not an employee of the plaintiff—did not aver in his affidavit tohaving any familiarity with the plaintiff's mailing practices and procedures. Under thesecircumstances, Nationstar failed to establish, prima facie, strict compliance with RPAPL 1304(compare Wells Fargo Bank, NA v Mandrin, 160 AD3d at 1016, Wells Fargo Bank, N.A. v Trupia, 150AD3d 1049, 1050 [2017], andCitiMortgage, Inc. v Pappas, 147 AD3d 900, 901 [2017], with Citimortgage, Inc. v Banks, 155AD3d 936, 937 [2017]).
The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court should have denied those branches of Nationstar's motionwhich were for summary judgment on the complaint insofar as asserted against the defendant, tostrike the defendant's answer and affirmative defense alleging that the plaintiff failed to complywith the requirements of RPAPL 1304, and for an order of reference, regardless of thesufficiency of the opposing papers (seeWells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890, 892 [2017]; M&T Bank v Joseph, 152 AD3d579, 581 [2017]; Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1051; Citibank, N.A. v Wood, 150 AD3d813, 814 [2017]). Leventhal, J.P., Chambers, Sgroi and Connolly, JJ., concur.