MORTGAGE FORECLOSURE - THE SECOND DEPARTMENT ADDRESSES RPAPL 1304

This foreclosure was commenced in 2010, and now that the summary judgement motions of both parties have been denied, it is, assuming discovery complete, ready for trial almost 10 years later.

Citibank, N.A. v Conti-Scheurer 2019 NY Slip Op 02846 Decided on April 17, 2019 Appellate Division, Second Department Iannacci, J., J.:

"Here, the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304. Although Crampton stated in her affidavit that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. There is no copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute. Further, while Crampton attested that she was in receipt of the prior loan servicer's records, that she had personal knowledge of the business practices for mailing of notices by Wilmington, and that the 90-day notice was sent in compliance with RPAPL 1304, she did not attest to knowledge of the mailing practices of Bank of America, the entity that allegedly sent the notices to the defendant. Since the plaintiff failed to provide proof of the actual mailing, 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, the plaintiff failed to establish its strict compliance with RPAPL 1304 (see U.S. Bank Natl. Assn. v Cope, 167 AD3d 965; Nationstar Mtge., LLC v LaPorte, 162 AD3d 784; U.S. Bank N.A. v Henry, 157 AD3d 839, 841; Investors Sav. Bank v Salas, 152 AD3d 752, 753; Citibank, N.A. v Wood, 150 AD3d 813, 814).

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With regard to that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against her based upon the plaintiff's alleged failure to comply with RPAPL 1304, the analysis is more problematic. Over approximately the last eight years, a line of cases has developed in the Second Judicial Department holding that, in an action to foreclose a mortgage, a defendant moving for summary judgment dismissing the complaint can establish, prima facie, that the plaintiff bank failed to comply with RPAPL 1304 by merely denying receipt of the RPAPL 1304 notice. This line of cases stems from Aurora Loan Servs., LLC v Weisblum (85 AD3d 95), wherein the plaintiff bank (hereinafter Aurora) did not establish, on its motion for summary judgment on the complaint, its strict compliance with RPAPL 1304, and this Court held that its motion should have been denied. Aurora conceded that the RPAPL 1304 notice was not sent to one of the borrowers. The RPAPL 1304 notice annexed as an exhibit to Aurora's motion papers did not contain the statutorily required list of counseling agencies, nor did Aurora submit an affidavit of service to establish service on both defendant borrowers. This Court further held that the defendant borrowers' cross motion for summary judgment dismissing the complaint for failure to comply with RPAPL 1304 should have been granted. This Court explained that the defendant borrowers established their prima facie entitlement to judgment as a matter of law by relying on the same evidence that had been submitted by Aurora, as well as their own affidavits wherein they stated that they did not receive the required notices, and in opposition, Aurora failed to raise a triable issue of fact (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106). Since then, several subsequent cases have held that a defendant in a mortgage foreclosure action can establish her or his prima facie entitlement to judgment as a matter of law dismissing the complaint simply by submitting an affidavit denying receipt of a RPAPL 1304 notice (see Deutsche Bank Natl. Trust Co. v Heitner, 165 AD3d 1038, 1039; U.S. Bank N.A. v Henry, 157 AD3d at 842; CitiMortgage, Inc. v Pappas, 147 AD3d 900, 902).

These cases notwithstanding, there is much case law standing for the proposition that a mere denial of receipt is insufficient to "win the day" in motion practice. For example, in the context of service of process, it is well established that a mere denial of service is insufficient to rebut a presumption of proper service established by an affidavit of service (see Stevens v Stepanski, 164 AD3d 935, 937; Goldfarb v Zhukov, 145 AD3d 757, 758). Similarly, a mere denial of receipt is insufficient to rebut a presumption of mailing where there is documentary proof of the mailing (see Engel v Lichterman, 62 NY2d 943; Flushing Sav. Bank, FSB v Colmar Realty, LLC, 121 AD3d 1040, 1041). Indeed, this Court has held in the RPAPL 1304 context that a mere denial of receipt is insufficient to raise a triable issue of fact to rebut a plaintiff's prima facie evidence of mailing (see Nationstar Mtge., LLC v LaPorte, 162 AD3d at 786; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822). While the above authorities apply where the server or the mailer has provided prima facie evidence of service or mailing, there is little authority for the proposition that a litigant can satisfy her or his prima facie burden on a motion for summary judgment dismissing the complaint by simply [*4]stating that a document was not received and, therefore, the other party did not perform an act, despite averments that the act was performed.

Even in the face of a plaintiff's failure to establish, prima facie, that a notice was properly mailed on a motion for summary judgment on the complaint, this Court has held that a defendant still has to meet its burden, on a cross motion for summary judgment dismissing the complaint, of establishing that the condition precedent was not fulfilled (see Wells Fargo Bank, N.A. v Sakizada, 168 AD3d 789; U.S. Bank N.A. v Sabloff, 153 AD3d 879, 881; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d at 911). Here, the defendant provided no particulars supporting her claim that Bank of America never mailed the RPAPL 1304 notice to her last known address. The defendant only stated that she never received the notice. The defendant did not confirm that she still lived at the address shown on the notice on the date it was purportedly mailed, that she had been receiving other mail at that address, and that she was never contacted by the United States Post Office about mail for which she was required to sign. We hold that a simple denial of receipt, without more, is insufficient to establish prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with the requirements of RPAPL 1304. To the extent that our prior decisions are to the contrary, they should no longer be followed.

Nor were the plaintiff's submissions sufficient to establish the defendant's prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with RPAPL 1304. There is ample case law providing that a party cannot succeed on a motion for summary judgment by simply pointing out gaps in the opposing party's case (see Walinchus v Lubeck, 124 AD3d 631, 632; Campbell v New York City Tr. Auth., 109 AD3d 455, 456). The plaintiff's submissions in support of its motion, while insufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law, tended to refute the defendant's mere statement that the "Plaintiff has . . . failed to prove its strict compliance with RPAPL [ ] 1304 with regard to the mailing of the required 90-day notice which I never received." Accordingly, the defendant failed to eliminate all triable issues of fact as to whether the RPAPL 1304 notice was mailed or received (see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911). Therefore, we agree with the Supreme Court's denial of the defendant's cross motion."