MORTGAGE FORECLOSURE: RPAPL1304 AND SUMMARY JUDGMENT

RPAPL 1304 must be proved by proper evidence in any foreclosure action and here the homeowner succeeded in defeating a summary judgment motion but the bank may be able to establish compliance at trial.

Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC v Williams, 2020 NY Slip Op 03561, Decided on June 24, 2020, Appellate Division, Second Department:

".....However, the plaintiff failed to establish its entitlement to judgment as a matter of law with respect to compliance with the notice requirement of RPAPL 1304. Proper service of RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of the foreclosure action, and failure of a plaintiff to make this showing requires denial of its motion for summary judgment (see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911). The lender must submit proof of mailing (such as an affidavit of service or domestic return receipts with attendant signatures) or an affidavit either from the individual who performed the actual mailing or an individual with personal knowledge of the lender's standard office mailing procedure (see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513; Citibank, N.A. v Wood, 150 AD3d 813, 814). Here, the unsubstantiated and conclusory statement of the plaintiff's attorney in an affidavit submitted in support of the motion that RPAPL 1304 notice was properly mailed to the defendant is insufficient to establish compliance with the statute as a matter of law (see Central Mtge. Co. v Abraham, 150 AD3d 961, 962; Citibank, N.A. v Wood, 150 AD3d at 814)."