Opinion
2018–03591 2018–03592 Index No. 30832/13
12-30-2020
WELLS FARGO BANK, N.A., etc., respondent, v. Ruth QUINCHE, appellant, et al., defendants.
Fred M. Schwartz, Smithtown, NY, for appellant. Woods Oviatt Gilman LLP (Reed Smith LLP, New York, N.Y. [Andrew B. Messite and Joseph S. Jacobs ], of counsel), for respondent.
Fred M. Schwartz, Smithtown, NY, for appellant.
Woods Oviatt Gilman LLP (Reed Smith LLP, New York, N.Y. [Andrew B. Messite and Joseph S. Jacobs ], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Ruth Quinche appeals from two orders of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), both dated October 30, 2017. The first order granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer, and for an order of reference. The second order granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer, and for an order of reference, and referred the matter to a referee to compute the amount due to the plaintiff.
ORDERED that the orders are affirmed, with costs.
In November 2013, the plaintiff commenced this action to foreclose a mortgage encumbering certain residential real property owned by the defendant Ruth Quinche (hereinafter the defendant). The defendant asserted as affirmative defenses, inter alia, that the plaintiff failed to serve her with a notice of default and failed to comply with RPAPL 1304. The plaintiff moved for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. The Supreme Court granted the motion and the defendant appeals. We affirm.
" ‘[P]roper service of RPAPL 1304 notice on the borrower ... is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition’ " ( Nationstar Mtge., LLC v. Durane–Bolivard, 175 A.D.3d 1308, 1309, 109 N.Y.S.3d 99, quoting Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 106, 923 N.Y.S.2d 609 ). "A defense based on noncompliance with RPAPL 1304 may be raised at any time during the action" ( Wells Fargo Bank, N.A. v. Morales, 178 A.D.3d 881, 882, 114 N.Y.S.3d 392 ). 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." "The statute requires that such notice ... be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower" ( U.S. Bank N.A. v. Ahmed, 174 A.D.3d 661, 663, 106 N.Y.S.3d 78 ; see RPAPL 1304[2] ). " ‘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’ " ( U.S. Bank, N.A. v. Ahmed, 174 A.D.3d at 663, 106 N.Y.S.3d 78, quoting Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1016, 76 N.Y.S.3d 182 ).
Contrary to the defendant's contention, the plaintiff demonstrated, prima facie, that it complied with the 90–day notice requirement of RPAPL 1304 (see HSBC Bank USA, N.A. v. Bermudez, 175 A.D.3d at 670, 107 N.Y.S.3d 138 ; Wells Fargo Bank, N.A. v. Heiney, 168 A.D.3d 1126, 1127, 93 N.Y.S.3d 84 ; Citimortgage, Inc. v. Wallach, 163 A.D.3d 520, 521, 81 N.Y.S.3d 210 ). The plaintiff submitted an affidavit of mailing of Jeremiah Herberg, its Vice President of Loan Documentation. Herberg averred that the 90–day notice was mailed to the defendant by both certified mail and first-class mail, and that such mailings were memorialized in the plaintiff's records pursuant to a standard mailing procedure. Herberg averred, based upon a review of books and records maintained by the plaintiff in the regular course of business, that the aforementioned notices were sent, and annexed a copy of the business records he reviewed (see Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 205–206, 97 N.Y.S.3d 286 ). In opposition to the plaintiff's prima facie showing of compliance with RPAPL 1304, the defendant failed to raise a triable issue of fact (see Nationstar Mtge., LLC v. LaPorte, 162 A.D.3d 784, 786, 79 N.Y.S.3d 70 ).
The defendant's contention that the plaintiff's motion should have been denied because the plaintiff failed to serve her with a notice of default prior to accelerating the debt is without merit, as the mortgage agreement expressly provides that the plaintiff was not required to give notice of any breach (see Home Fed. Sav. Bank v. Sayegh, 250 A.D.2d 646, 647, 671 N.Y.S.2d 698 ).
MASTRO, J.P., LASALLE, CONNOLLY and WOOTEN, JJ., concur.