| Wells Fargo Bank, N.A. v Kohli |
| 2019 NY Slip Op 04751 [173 AD3d 941] |
| June 12, 2019 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, National Association,Respondent, v Sanjay Kohli, Appellant, et al., Defendants. |
Law Office of Maggio & Meyer, PLLC, Bohemia, NY (Holly C. Meyer of counsel), forappellant.
Sandelands Eyet LLP, New York, NY (William C. Sandelands and Michael Aiello ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Sanjay Kohli appeals from a judgment offoreclosure and sale of the Supreme Court, Nassau County (Thomas A. Adams, J.), enteredOctober 3, 2016. The judgment of foreclosure and sale, upon an order of the same court datedDecember 22, 2015, inter alia, granting those branches of the plaintiff's motion which were forsummary judgment on the complaint insofar as asserted against that defendant and for an order ofreference, upon an order of the same court, also dated December 22, 2015, inter alia, referring thematter to a referee to compute the amount due on the mortgage loan, and upon an order of thesame court dated September 21, 2016, granting the plaintiff's motion for a judgment offoreclosure and sale, inter alia, directed the sale of the subject property.
Ordered that on the Court's own motion, the notice of appeal from the order dated September21, 2016, is deemed to be a premature notice of appeal from the judgment of foreclosure and sale(see CPLR 5520 [c]); and it is further,
Ordered that the judgment of foreclosure and sale is reversed, on the law, those branches ofthe plaintiff's motion which were for summary judgment on the complaint insofar as assertedagainst the defendant Sanjay Kohli and for an order of reference are denied, the plaintiff's motionfor a judgment of foreclosure and sale is denied, and both orders dated December 22, 2015, andthe order dated September 21, 2016, are modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the defendant Sanjay Kohli.
The plaintiff commenced this mortgage foreclosure action against, among others, thedefendant Sanjay Kohli (hereinafter the defendant). The defendant interposed an answer whereinhe asserted as affirmative defenses, inter alia, that the plaintiff lacked standing, that the plaintifffailed to comply with RPAPL 1304, and that the plaintiff failed to provide him with a notice ofdefault in accordance with section 22 of the mortgage. In an order dated December 22, 2015, theSupreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaintinsofar as asserted against the defendant and for an order of reference. In a separate order alsodated December 22, 2015, the court, among other things, referred the matter to a referee tocompute the amount due to the plaintiff on the mortgage loan. Subsequently, the court, in anorder dated September 21, 2016, granted the plaintiff's motion for a judgment of foreclosure andsale, and thereafter entered a judgment of foreclosure and sale. The defendant appeals.
Contrary to the defendant's contention, the plaintiff demonstrated, prima facie, its standing tocommence the action, as evidenced by its attachment of the note, endorsed in blank, to thesummons and complaint at the time the action was commenced (see U.S. Bank N.A. v Henry, 157AD3d 839, 841 [2018]; U.S. BankN.A. v Saravanan, 146 AD3d 1010, 1011 [2017]).
However, the plaintiff failed to establish its prima facie entitlement to judgment as a matterof law. "Generally, in moving for summary judgment in an action to foreclose a mortgage, aplaintiff establishes its prima facie case through the production of the mortgage, the unpaid note,and evidence of default" (Deutsche BankNatl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015] [internal quotation marksomitted]). Here, the plaintiff's submissions, including the affidavit of Daphne Proctor, a"Document Execution Specialist" employed by the loan servicer, failed to lay a proper foundationfor the admission of the business records relied on by the plaintiff to establish the defendant'sdefault in repayment of the subject loan (see Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 204 [2d Dept2019]). Notably, to the extent that Proctor's "purported knowledge of [the defendant's] defaultwas based upon her review of unidentified business records created and maintained by [the loanservicer], her affidavit constituted inadmissible hearsay and lacked probative value" (171 AD3dat 208-209).
Moreover, the plaintiff failed to establish, prima facie, its strict compliance with RPAPL1304. The record contains a single 90-day notice with no clear indication as to whether themailing was made by registered or certified mail, or by first-class mail (see Bank of Am., N.A. v Bittle, 168AD3d 656, 658 [2019]). Furthermore, Proctor, who asserted that the notices required underRPAPL 1304 were mailed, did not aver in her affidavit that she was familiar with the loanservicer's mailing practices and procedures, and therefore did not establish proof of a standardoffice practice and procedure designed to ensure that items are properly addressed and mailed(see Bank of Am., N.A. v Bittle, 168 AD3d at 658; CitiMortgage, Inc. v Pappas, 147 AD3d 900, 901 [2017]), nor didshe aver that she had mailed the notices herself.
The plaintiff also failed to establish, prima facie, that a notice of default in accordance withsection 22 of the mortgage was properly transmitted to the defendant prior to the commencementof this action (see J.P. Morgan Mtge.Acquisition Corp v Kagan, 157 AD3d 875, 876 [2018]).
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendant andfor an order of reference, without regard to the sufficiency of the defendant's opposing papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; J.P. MorganMtge. Acquisition Corp v Kagan, 157 AD3d at 876). Leventhal, J.P., Roman, LaSalle andChristopher, JJ., concur.