| U.S. Bank N.A. v Cope |
| 2019 NY Slip Op 06111 [175 AD3d 527] |
| August 7, 2019 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, Respondent, v DockCope, Appellant, et al., Defendants. |
Joseph A. Altman, P.C., Bronx, NY, for appellant.
Eckert Seamans Cherin & Mellot, LLC, White Plains, NY (Morgan R. McCord ofcounsel), for respondent.
Motion by the appellant for leave to reargue an appeal from an order of the Supreme Court,Nassau County, entered February 19, 2016, which was determined by decision and order of thisCourt dated December 19, 2018. Separate motion by the respondent to dismiss the appeal on theground that the right of direct appeal from the order terminated upon entry of an order andjudgment of foreclosure and sale (one paper) of the same court entered December 19, 2018, andto vacate the decision and order of this Court dated December 19, 2018. Separate motion by theappellant, inter alia, to deem the notice of appeal from the order to be a premature notice ofappeal from the order and judgment of foreclosure and sale, to deem the record and briefs filed inconnection with the appeal from the order to be filed in connection with the appeal from theorder and judgment of foreclosure and sale, and for leave to serve and file a supplemental recordcontaining the order and judgment of foreclosure and sale.
Upon the papers filed in support of the motions and the papers filed in opposition thereto, itis
Ordered that the respondent's motion and the appellant's motion, inter alia, to deem the noticeof appeal from the order to be a premature notice of appeal from the order and judgment offoreclosure and sale are denied; and it is further,
Ordered that the motion for leave to reargue is granted, and upon reargument, the decisionand order of this Court dated December 19, 2018 (U.S. Bank N.A. v Cope, 167 AD3d 965 [2018]), is recalled andvacated, and the following decision and order is substituted therefor nunc pro tunc to December19, 2018:
In an action to foreclose a mortgage, the defendant Dock Cope appeals from an order of theSupreme Court, Nassau County (Thomas A. Adams, J.), entered February 19, 2016. The order,insofar as appealed from, granted those branches of the plaintiff's motion which were forsummary judgment on the complaint insofar as asserted against the defendant Dock Cope, tostrike that defendant's answer, and for an order of reference, and denied the cross motion of thedefendant Dock Cope for summary judgment dismissing the complaint insofar as asserted againsthim.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting those branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against the defendant Dock Cope, to strike that defendant's answer,and for an order of reference, and substituting therefor a provision denying those branches ofthe motion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
In 1988, the defendant Dock Cope (hereinafter the defendant) borrowed the sum of $180,000from Home Savings of America, F.A. (hereinafter Home Savings), and the loan was secured by amortgage on real property located in Westbury. By assignment dated September 19, 2003,Washington Mutual Bank, F.A. (hereinafter WAMU), successor by merger to Home Savings,assigned the mortgage "together with the Note" to the plaintiff.
In 2014, the plaintiff commenced this foreclosure action, alleging that the defendant haddefaulted under the terms of the note and mortgage. The plaintiff annexed to the complaint anaffidavit of lost note of Cynthia A. Riley, assistant vice president of WAMU, dated September16, 2003, and a photocopy of the note. In her affidavit, Riley did not offer any details as to thecircumstances under which the note was purportedly lost, but she averred that she conducted adiligent search of "all of our files," consisting of "a thorough audit of the customary filinglocations, inclusive of the original credit file." Further, Riley stated that "[a]ll applicabledepartments were required to conduct an audit of their areas to locate said [note]." Rileyconcluded: "Said due and diligent search failed to locate said promissory note, and saidpromissory note is deemed lost."
In his answer, the defendant asserted as affirmative defenses, inter alia, that the plaintifflacked standing, the lost note affidavit was deficient, the plaintiff failed to comply with the noticeof default provision of the mortgage, and the plaintiff failed to comply with the statutoryrequirements to commence a foreclosure action.
The plaintiff moved, inter alia, for summary judgment on the complaint insofar as assertedagainst the defendant, to strike the defendant's answer, and for an order of reference, and thedefendant cross-moved for summary judgment dismissing the complaint insofar as assertedagainst him. The Supreme Court granted the plaintiff's motion and denied the defendant's crossmotion. The defendant appeals.
" 'Generally, in moving for summary judgment in an action to foreclose a mortgage,a plaintiff establishes its prima facie case through the production of the mortgage, the unpaidnote, and evidence of default' " (Hudson City Sav. Bank v Genuth, 148 AD3d 687, 688-689 [2017],quoting Deutsche Bank Natl. Trust Co. vAbdan, 131 AD3d 1001, 1002 [2015]). Pursuant to UCC 3-804, the owner of a lost notemay maintain an action "upon due proof of [1] his [or her] ownership, [2] the facts which preventhis [or her] production of the instrument and [3] its terms" (UCC 3-804). The party seeking toenforce a lost instrument is required to "account for its absence" (UCC 3-804, OfficialComment).
Here, although the plaintiff came forward with evidence establishing that the note wasassigned to it and establishing the note's terms, the affidavit of lost note submitted in support ofits motion failed to establish the facts that prevent the production of the original note(see UCC 3-804; Deutsche BankNatl. Trust Co. v Anderson, 161 AD3d 1043, 1044-1045 [2018]; US Bank N.A. v Richards, 155 AD3d522, 524 [2017]; Marrazzo v Piccolo, 163 AD2d 369 [1990]; see also New YorkCommunity Bank v Jennings, 2015 NY Slip Op 31591[U], *4-5 [Sup Ct, Queens County2015]). Additionally, we note that Riley's out-of-state affidavit lacked a certificate of conformityas required by CPLR 2309 (c), although such defect by itself would not be fatal to the plaintiff'smotion (see Bank of N.Y. Mellon vVytalingam, 144 AD3d 1070, 1071 [2016]).
Further, the evidence submitted in support of the plaintiff's motion failed to establish, primafacie, that the plaintiff strictly complied with RPAPL 1304. Proper service of the RPAPL 1304notice containing the statutorily mandated content is a condition precedent to the commencementof a foreclosure action (see Aurora LoanServs., LLC v Weisblum, 85 AD3d 95, 103 [2011]). The plaintiff failed to submit anaffidavit of service or any proof of mailing by the post office demonstrating that it properlyserved the defendant pursuant to the terms of the statute (see U.S. Bank N.A. v Henry, 157 AD3d 839 [2018]; Investors Sav. Bank v Salas, 152 AD3d752 [2017]; Citibank, N.A. vWood, 150 AD3d 813 [2017]; cf. Citimortgage, Inc. v Banks, 155 AD3d 936 [2017]). Contrary tothe plaintiff's contention, the affidavit of a representative of its loan servicer was insufficient toestablish that the notice was sent to the defendant in the manner required by RPAPL 1304, as therepresentative did not provide evidence of a standard office mailing procedure andprovided no independent evidence of the actual mailing (see Wells Fargo Bank, NA v Mandrin,160 AD3d 1014 [2018]; Bank ofAm., N.A. v Wheatley, 158 AD3d 736 [2018]; U.S. Bank N.A. v Henry, 157AD3d at 842; Investors Sav. Bank v Salas, 152 AD3d at 754; Citibank, N.A. vWood, 150 AD3d at 814; cf.Flagstar Bank, FSB v Mendoza, 139 AD3d 898 [2016]).
Likewise, the plaintiff failed to establish, prima facie, that it complied with the conditionprecedent contained in the mortgage requiring it to give notice of default prior to demandingpayment in full (see Emigrant Bank vMyers, 147 AD3d 1027 [2017]). The affidavit of a representative of the plaintiff's loanservicer claiming that notice of default was sent to the defendant on November 7, 2012, wasconclusory and unsubstantiated, and even when considered together with a copy of the notice ofdefault, was insufficient to prove that the notice was sent in accordance with the terms of themortgage (see id.; GMAC Mtge.,LLC v Bell, 128 AD3d 772 [2015]; Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982 [2014]).
Accordingly, since the plaintiff failed to meet its prima facie burden, those branches of itsmotion which were for summary judgment on the complaint insofar as asserted against thedefendant, to strike the defendant's answer, and for an order of reference should have been deniedwithout regard to the sufficiency of the defendant's opposition papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In light of the foregoing, we need notreach the defendant's contention that the plaintiff failed to establish that it had standing tocommence the action.
However, we agree with the Supreme Court's determination to deny the defendant's crossmotion for summary judgment dismissing the complaint insofar as asserted against him. Thedefendant's conclusory claim that the plaintiff failed to serve him with a notice of defaultpursuant to the terms of the mortgage, and his bare denial of receipt of the RPAPL 1304 notice,were insufficient to meet his prima facie burden for summary judgment (see Citibank, N.A. vConti-Scheurer, 172 AD3d 17 [2019]; LNV Corp. v Sofer, 171 AD3d 1033 [2019]).Scheinkman, P.J., Mastro, Barros and Connolly, JJ., concur.