FORECLOSURE - MUST SHOW COMPLIANCE WITH RPAPL 1304

Bank of Am., N.A. v Wheatley, 2018 NY Slip Op 01175, Decided on February 21, 2018, Appellate Division, Second Department:

"However, the Supreme Court properly determined that the plaintiff failed to establish, prima facie, its compliance with RPAPL 1304. RPAPL 1304(1) provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." RPAPL 1304(1) sets forth the requirements for the content of such notice and further provides that such notice must be sent by registered or certified mail and by first-class mail to the last known address of the borrower (see RPAPL 1304[2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106; see CitiMortgage, Inc. v Pappas, 147 AD3d 900, 901; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910).

Contrary to the plaintiff's contention, since the defendant raised the issue of compliance with RPAPL 1304 as an affirmative defense in his answer, the plaintiff was required to make a prima facie showing of compliance with RPAPL 1304 (cf. Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830; U.S. Bank N.A. v Carey, 137 AD3d 894, 896). The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the business records exception" to the hearsay rule, Benight, in her affidavit, did not aver that she was 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 properly addressed and mailed (CitiMortgage, Inc. v Pappas, 147 AD3d at 901; see Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050). Moreover, the plaintiff failed to demonstrate, prima facie, that the notices included a list of five housing counseling agencies, as required by the statute (see RPAPL 1304[2]). Although Benight stated in her affidavit that the notices included such a list, the copies of the notices submitted merely included information about contacting a hotline that would provide "free personalized advice from housing counseling agencies certified by the U.S. Department of Housing and Urban Development."

Since the plaintiff failed to demonstrate its compliance with RPAPL 1304, the Supreme Court properly denied its motion for summary judgment (see Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1051; Citibank, N.A. v Wood, 150 AD3d 813, 814; CitiMortgage, Inc. v Pappas, 147 AD3d at 902)."