MORTGAGE FORECLOSURE - RPAPL 1304

Wells Fargo Bank, NA v Mandrin, 2018 NY Slip Op 02826, Decided on April 25, 2018, Appellate Division, Second Department:

"However, reversal is required in light of the plaintiff's failure to establish strict compliance with the 90-day notice requirement of RPAPL 1304. " [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'" (Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049, 1050, quoting Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106). "The statute requires that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower" (Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050; see RPAPL 1304). By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing (see Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050). Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure (see M & T Bank v Joseph, 152 AD3d 579; Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050-1051; Citibank, N.A. v Wood, 150 AD3d 813, 814; Citimortgage, Inc. v Pappas, 147 AD3d 900, 901-902; Flagstar Bank, FSB v Mendosa, 139 AD3d 898, 900).

Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or other proof of mailing by the post office establishing that it properly served Mandrin pursuant to RPAPL 1304. The unsubstantiated and conclusory statement of a vice president of the plaintiff that a 90-day pre-foreclosure notice "was forwarded by regular and certified mail" to Mandrin "in full compliance with all requirements of RPAPL § 1304" was insufficient to establish that the notice was actually mailed to Mandrin by first-class and certified mail (see M & T Bank v Joseph, 152 AD3d 579; Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050-1051; Citibank, N.A. v Wood, 150 AD3d at 814; Cenlar, FSB v Censor, 139 AD3d 781, 782-783). Because the plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, that branch of its motion which was for summary judgment on the complaint insofar as asserted against Mandrin should have been denied, regardless of the sufficiency of Mandrin's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."