MORTGAGE FORECLOSURE - NECESSARY EVIDENCE FOR SUMMARY JUDGMENT

The rules of evidence do apply to summary judgment motions.

U.S. Bank N.A. v Cope, 2019 NY Slip Op 06111, Decided on August 7, 2019, Appellate Division, Second Department:

""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 unpaid note, and evidence of default'" (Hudson City Sav. Bank v Genuth, 148 AD3d 687, 688-689, quoting Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002). Pursuant to UCC 3-804, the owner of a lost note may maintain an action "upon due proof of [1] his [or her] ownership, [2] the facts which prevent his [or her] production of the instrument and [3] its terms" (UCC 3-804). The party seeking to enforce a lost instrument is required to "account for its absence" (UCC 3-804, Official Comment).

Here, although the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note's terms, the affidavit of lost note submitted in support of its motion failed to establish the facts that prevent the production of the original note (see UCC 3-804; Deutsche Bank Natl. Trust Co. v Anderson, 161 AD3d 1043, 1044-1045; US Bank N.A. v Richards, 155 AD3d 522, 524; Marrazzo v Piccolo, 163 AD2d 369; see also New York Community Bank v Jennings, 2015 NY Slip Op 31591[U], *4-5 [Sup Ct, Queens County]). Additionally, we note that Riley's out-of-state affidavit lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff's motion (see Bank of N.Y. Mellon v Vytalingam, 144 AD3d 1070, 1071).

Further, the evidence submitted in support of the plaintiff's motion failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304. Proper service of the RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103). The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office [*2]demonstrating that it properly served the defendant pursuant to the terms of the statute (see U.S. Bank N.A. v Henry, 157 AD3d 839; Investors Sav. Bank v Salas, 152 AD3d 752; Citibank, N.A. v Wood, 150 AD3d 813; cf. Citimortgage, Inc. v Banks, 155 AD3d 936). Contrary to the plaintiff's contention, the affidavit of a representative of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the representative did not provide evidence of a standard office mailing procedure and provided no independent evidence of the actual mailing (see Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014; Bank of Am., N.A. v Wheatley, 158 AD3d 736; U.S. Bank N.A. v Henry, 157 AD3d at 842; Investors Sav. Bank v Salas, 152 AD3d at 754; Citibank, N.A. v Wood, 150 AD3d at 814; cf. Flagstar Bank, FSB v Mendoza, 139 AD3d 898).

Likewise, the plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in the mortgage requiring it to give notice of default prior to demanding payment in full (see Emigrant Bank v Myers, 147 AD3d 1027). The affidavit of a representative of the plaintiff's loan servicer claiming that notice of default was sent to the defendant on November 7, 2012, was conclusory and unsubstantiated, and even when considered together with a copy of the notice of default, was insufficient to prove that the notice was sent in accordance with the terms of the mortgage (see id.; GMAC Mtge., LLC v Bell, 128 AD3d 772; Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982).

Accordingly, since the plaintiff failed to meet its prima facie burden, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference should have been denied without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In light of the foregoing, we need not reach the defendant's contention that the plaintiff failed to establish that it had standing to commence the action."