Opinion
33978/2011
12-05-2018
BANK OF AMERICA, NA Successor by Merger to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing LP, Plaintiff, v. Mehmood AHMAD, Mortgage Electronic Registration Systems, Inc. as Nominee for Countrywide Bank, N.A., and "John Doe No. 1," Through "John Doe #10," The Last Ten Names Being Fictitious and Unknown to the Plaintiff, the Person or Parties Intended Being the Persons or Parties, if Any, Having or Claiming an Interest in or Lien Upon the Mortgage Premises Described in the Complaint, Defendants.
FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP, 53 Gibson Street, Bay Shore, N.Y. 11706, Attorneys for Plaintiff AHERN & AHERN, One Main Street, Kings Park, N.Y. 11754, Attorneys for Defendant Ahmad
FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP, 53 Gibson Street, Bay Shore, N.Y. 11706, Attorneys for Plaintiff
AHERN & AHERN, One Main Street, Kings Park, N.Y. 11754, Attorneys for Defendant Ahmad
Robert F. Quinlan, J.
PROCEDURAL HISTORY
This is an action to foreclose a mortgage on residential real property known as 40 Barrett Avenue, Bayport, Suffolk County, New York ("the property") given by defendant Mehmood Ahmad ("defendant") to Mortgage Electronics Registration Systems Inc. as nominee for Countrywide Home Loans, Inc. ("Countrywide"), solely for the purpose of recording the mortgage, on December 10, 2004 to secure a note given the same day to Countrywide by defendant. Plaintiff Bank of America, NA successor by merger to BAC Home Loans Servicing, LP FKA Countrywide Home Loans ("plaintiff"), as indicated by the title of the action, is a the successor in interest to Countrywide. The history of this action is set forth in the court's decision on plaintiff's motion for summary judgment and associated relief placed on the record after oral argument on June 13, 2016 (Mot. Seq. # 001), which granted plaintiff partial summary judgment, dismissing all of defendant's affirmative defenses raised in his answer except the first affirmative defense which raised issues of compliance with the mailing requirements of RPAPL § 1304. In opposition to plaintiff's motion defendant for the first time raised a claim that plaintiff failed to comply with Banking Law 6-l, an issue that remained unresolved after the oral argument. The court set both the issue of compliance with the mailing requirements of RPAPL § 1304 and the claim related to Banking Law 6-l for a limited issues trial pursuant to CPLR 3212 (g) and CPLR § 2218. The court issued a written discovery and scheduling order authorizing further discovery on these issues to be completed in 120 days, set a certification conference, as well as authorizing the parties to file successive summary judgment motions upon completion of discovery, within thirty days of filing of a note of issue.
From the further history of the case, as more closely examined below, the parties did engage in discovery, the case was certified ready for trial at the compliance conference held October 27, 2016, a note of issue was filed on November 22, 2016, a pre-trial conference was scheduled for January 20, 2017 and the trial set for March 21, 2017.
TRIAL
Preliminarily, the court notes that after a conference with the court and parties immediately before trial defendant withdrew his objections based upon Banking Law 6-l, which the court therefore dismissed, leaving the single issue for trial plaintiff's proof of compliance with the mailing requirements of RPAPL § 1304.
Plaintiff called Zachary Chromiak, an assistant vice president of Bank of America, NA ("BANA"). Mr. Chromiak was the only witness produced by plaintiff. Mr. Chromiak established his familiarity with BANA's business practices and procedures and established his ability to testify as to BANA's business records pursuant to CPLR 4518. The issues with his testimony did not, in the court's opinion, result from his ability to testify as to BANA's computer records that were made in the regular course of BANA's business and maintained in that regular course of business, made at or about the time of the events referred to therein, by employees of BANA with a business duty to do so. Rather it resulted from his attempts to testify as to computer records entered in to BANA's record keeping system as a result of BANA's interaction with an independent mail contractor, Walz, engaged by BANA to mail the RPAPL § 1304 notices ("the notices") on behalf of BANA, and what those records meant, represented and established. During the course of Mr. Chromiak's testimony in support of the admission into evidence of a copy of the notice purportedly mailed by regular first class mail to defendant at the property, which was on BANA stationery and addressed as if sent directly from BANA, Mr. Chromiak first mentioned that this mailing, as well as the one by certified mail, was made on behalf of BANA by Walz. This testimony was objected to by defendant's counsel on a number of grounds, including a claim that Mr. Chromiak's testimony did not meet the requirements of CPLR 4518. Although the court did admit into evidence as Plaintiff's Exhibit 1 this notice allegedly sent by first class mail, and as Plaintiff's Exhibit 2 the notice allegedly sent by certified mail, the court only entered them as print outs from the computer maintained business records of BANA, as the court found that the printouts were made and maintained in the regular course of BANA's business; but the court did not admit either Plaintiff's Exhibit 1 or Exhibit 2 into evidence to establish that they were mailed by Walz or BANA. Defendant did not challenge the sufficiency of the content of the notices as not complying with the requirements of RPAPL § 1304.
In response to questions by his counsel, defendant's counsel and the court, Mr. Chromiak at various times testified that the notices (which both contained the exact same language) contained information that was originally entered in BANA's computer record keeping system by employees of BANA. He stated that the computer system would automatically populate a template prepared by BANA for the notices with that information when a default in payment required the notices to be sent, or alternatively that the information could be entered by a BANA employee. At other times he made it seem that the information used to populate the notice was sent to Walz by electronic computer transfer, and that Walz would generate the notice using a copy of the template that it had. His testimony was clear that Walz prepared the notices for mailing, put the mailing information, including tracking numbers and scan bars, on both mailings, and the mailings were made by Walz from the Walz facility. Once mailed, Walz would notify BANA electronically (computer) sending BANA copies of the completed notices, including the envelopes in which they were allegedly mailed containing the tracking numbers and scan bars. He stated that it was BANA's practices and procedures to accept the computer generated return as proof of mailing by Walz, and that BANA relied upon this in its business practices.
He also testified that BANA's business records maintained in the ordinary course of business contained a scanned copy of both sides of the USPS certified mail return receipt. One side shows the tracking number and scan bar that also appears on the envelope which is part of Plaintiff's 2 in evidence, that the return receipt was addressed to defendant at the property and that it was signed for there by an Asia Bano on June 24, 2011. The reverse shows a return address to BANA at a post office box in Temecula, CA and appears to bear a USPS postal stamp dated June 25, 2011. Similarly to Plaintiff's Exhibits 1 and 2, this printout of the scan maintained in BANA's computer records was admitted into evidence, only as a business record of BANA's.
Mr. Chromiak established his familiarity with BANA's business practices and procedures and his ability to testify to its business records pursuant to CPLR 4518, but he provided nothing more than BANA's practices and procedures in an attempt to prove that Walz mailed the notice by regular first class mail. He did not establish how BANA's practices and procedures in relying upon Walz for mailing would establish any proof of Walz's practices and procedures for mailing the notices.
Under cross-examination Mr. Chromiak acknowledged that he never worked for Walz, never visited Walz, does not know where they were located, does not know where they make their mailings, he was not familiar or trained in Walz record keeping practices, he had no training in the Walz system, that he did not know where the envelopes were printed, whether they were printed by Walz or someone else, he did not know whether Walz did or did not subcontract out the mailings, he did not know whether the mailings were done individually or in batches and he had no idea about Walz' quality control. At one point he flatly stated that "I can't speak to Walz' record keeping." He did not establish any training in or familiarity with Walz' business practices and procedures, particularly those relating to mailing which would establish Walz' practices and procedures, and which detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed.
At the conclusion of Mr. Chromiak's testimony, the court reserved decision on the admissibility of Plaintiff's Exhibits 1, 2 and 3 to establish the mailing of the notices by regular first class mail and certified mail to defendant, and thereby reserving decision on the trial itself pending the submission of post-trial memorandums of law by the parties. Defendant presented no witnesses, and the parities rested.
DISCOVERY ISSUES: CLAIMS OF PRECLUSION AND ADMISSION
Prior to the lunch recess and before the direct examination of Mr. Chromiak concluded, defendant raised a separate objection to both the copy of the notice mailed by regular first class mail and by certified mail to defendant at the property: that plaintiff had failed to comply with a discovery demand sent after the court's order of June 13, 2016 and that therefore this testimony should be precluded.
Defendant objected to all testimony concerning "who mailed the notices" as defendant's counsel claimed that he had been given an expectation that he would be facing testimony from plaintiff that plaintiff itself had mailed the notices, not a third party vendor. This claim arose from defendant's Amended Combined Demand sent to plaintiff on June 21, 2016 entitled "DOCUMENTS AND/OR THINGS DEMANDED." Near the end of that document were demands for documents relating to the loan application and closing documents and "Copies of ninety day notice sent to defendant and the name of person who sent same." In initially making his argument at trial for preclusion, defendant's counsel produced plaintiff's reply which, among its many objections to defendant's requests, did include copies of the notices in both English and Spanish, as well as copies of the front and back of the certified mailing receipt sent to the property and signed for by a person other than defendant. At that time defendant's counsel argued that since there was no reference in plaintiff's reply to a third party mailing vendor in response to the request for "the name of person who sent same," defendant assumed plaintiff would present an employee or records of plaintiff that would establish the mailing. Having not revealed the identity of Walz in the response, defendant argued that plaintiff should now be precluded from eliciting testimony that Walz mailed the notices.
Plaintiff's counsel seemed as surprised at this application as defendant had been surprised at Walz' involvement. In a colloquy among the attorneys and the court, the court pointed out to defendant's counsel that he never moved to enforce compliance with his demand, never brought up the issue of the failure to comply with an outstanding discovery demand at the conference where counsel entered a compliance conference certification order that was "so ordered" by the court and never moved to strike the note of issue for outstanding discovery. As the lunch hour was upon the court, the court adjourned the argument on this issue until after lunch, asking both counsel to research it and be ready for further argument when the court reconvened.
During the recess plaintiff's counsel appeared to have more thoroughly reviewed his file. In addition to other arguments made on the record against preclusion, including that generally preclusion has only been granted after a contumacious refusal to comply with a court order, he argued that as his client did not know the name of the person who mailed the notices, it could not have given a name to defendants.
Additionally, plaintiff's counsel's review of his file brought forward a Notice To Admit sent by plaintiff to defendant dated August 3, 2016. The first three demands in the notice asked defendant to either admit or deny that the person who signed the certified mail receipt resided, or was present, at the property on the date the receipt was signed and that she executed the copy of the certified mailing receipt annexed to the demand (there were also two now irrelevant demands concerning the dismissed Banking Law 6-l claim). Plaintiff's counsel produced an affidavit of mailing of the Notice To Admit to defendant's counsel, but defendant's counsel objected that he had never seen the Notice To Admit until now. The court had the Suffolk County Clerk's file on the case and upon review of the file found therein a copy of the Notice To Admit and the affidavit of mailing.
The court reserved decision on both defendant's application to preclude both Mr. Chromiak's testimony concerning the mailings by Walz and plaintiff's application to deem the first three items in the Notice To Admit as admitted evidence, although the court did allow the notice to be marked as Plaintiff's Exhibit 8 in evidence and thereafter directed the parties to address these issue, along with others in post-trial memorandums of law.
Among plaintiff's submission in its post-trial memorandum of law is a copy of a letter by defendant's counsel, dated August 24, 2016, referring to plaintiff's incomplete response to his discovery demand of June 21, 2016, but only complaining therein that plaintiff had not complied with his requests concerning the Banking Law 6-l claims and threatening to ask the court for permission to file a motion to strike plaintiff's pleadings if there was no compliance with those demands within 20 days. There was no complaint by defendant concerning the failure of plaintiff to provide the name of the person who sent the notices. Counsel never contacted the court nor was a motion to compel compliance or punish made until raised at trial.
PRECLUSION DENIED
Defendant's application to preclude all testimony concerning the purported mailing of the notices by Walz because plaintiff did not provide "the name of person who sent same" requested in the discovery demand dated June 21, 2016 is denied. Defendant made no effort to attempt to obtain any form of compliance from plaintiff for the failure to provide the name demanded, in fact his letter of protest to plaintiff complained only of the insufficiency of plaintiff's reply to the demands relating to the Banking Law 6-l claims, there was no mention of the now complained of omission. The extreme remedy of precluding evidence pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Willfulness and contumaciousness may be inferred from the offending party's repeated failures to comply with court-ordered discovery over an extended period (see Palmieri v. Piano Exchange, Inc. , 124 AD3d 611 [2d Dept. 2015] ). There is no history here that would warrant this drastic remedy, and in any event, plaintiff concedes that it does not know who mailed the letter. From the trial and cross-examination by defendant's counsel, defendant did not appear to suffer any prejudice from the failure to reveal Walz as the mailing agent of plaintiff.
ADMISSION BASED UPON NOTICE TO ADMIT SUSTAINED
Failure to respond or move against a notice to admit is done at a party's peril. A failure to deny or move to strike the notice may often result in an admission. Plaintiff's counsel's proffered affidavit of mailing of the notice to admit, as well as the fact that a copy of the notice to admit and affidavit of mailing was found in the Suffolk County Clerk's file, is sufficient to overcome defendant's counsel's claim of non-receipt. Although given an opportunity in the post-trial memorandum to address the issue of the notice to admit, defendant's counsel chose to ignore the issue and made no reference to it. The notice to admit requested defendant to admit or deny that the person who signed the USPS certified mail receipt resided, or was present, at the property on the date the receipt was signed and that she signed the copy of the certified mailing receipt.
CPLR § 3123 (a), states in pertinent part:
"not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter ... or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry....Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof ... the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters."
Although not objected to by defendant, the court finds that plaintiff had no reason to believe that there would be a substantial dispute at the trial on the issue of the person who signed the USPS certified mail receipt resided or was present at the property on the date it was signed, and defendant as the owner of the property had knowledge of the fact of who was residing at his property at the time. Further, as plaintiff had provided defendant with a copy of the USPS certified mailing receipt as part of its submission in Mot. Seq. # 001, defendant could not have been surprised at the request. Admitting that the person who signed the receipt resided or was at the property on the date it was signed is a clear cut admission of facts which are within defendant's knowledge (see Risucci v. Homayoon , 122 AD2d 260 [2d Dept. 1986] ; Burrell v. West , 163 AD3d 660 [2d Dept. 2018] ). Although it could be said that an acknowledgment of the truth of these first three requests in the notice to admit could assist plaintiff in establishing the mailing of the notices required by RPAPL § 1304 to defendant at the property, it is not an explicit acknowledgment by defendant that plaintiff made the mailings, nor does it improperly seek concessions that go to the heart of the dispute in controversy or the very essence of the case, which are circumstances where such a demand would be improper (see Orellana v. City of New York , 203 AD2d 542 [2d Dept. 1994] ; Singh v. G & A Mounting & Die Cutting, Inc. , 292 AD2d 516 [2d Dept. 2002] ; 32nd Ave. LLC v. Angelo Holding Corp. , 134 AD3d 696 [2d Dept. 2015] ).
As defendant failed to respond to the notice to admit, the first three demands are deemed admitted.
DECISION BY THE COURT
CERTIFIED MAILING OF RPAPL § 1304 ESTABLISHED
Plaintiff's proof at trial has established that the notice was sent by certified mail to defendant at the property at least ninety (90) days prior to the filing of this action, and the record shows that the property address was the only mailing address that defendant provided. The proof of this compliant mailing was provided in two ways. First, as stated above, Mr. Chromiak established his ability to testify as to the business records of BANA maintained in BANA's computer records pursuant to CPLR 4518. His testimony established his review of those computer records and that those computer records contained a copy of the form notice, generated either by an employee of BANA or by BANA's computer system, that contained the information required by the statute. Copies of that notice were admitted into evidence as Plaintiff Exhibits 1 and 2 as business records maintained by BANA. Defendant raised no claim that the information contained in the notice failed to comply with the requirements of RPAPL § 1304. Also admitted into evidence (Plaintiff's Exhibit 3) as BANA's business record was a copy of both sides of the USPS certified mailing receipt, herein after referred to as "the receipt," which was scanned into BANA's computer records. The receipt shows that it was addressed on one side to defendant at the property and signed for by a person at the property on "6/24/11," and that on the reverse side was a return address to BAC Home Loans Servicing, LP (the entity plaintiff had merged with). A review of Plaintiff's Exhibit 2 and Plaintiff's Exhibit 3 show that the 15 numbers of the USPS certified mailing code on each exhibit matched. This receipt shows that Plaintiff's 2 was mailed as required by RPAPL § 1304 to defendant at the property, as it was signed for at the property and returned to plaintiff's successor by merger. RPAPL § 1304 does not require plaintiff establish that defendant received the mailing, only that the mailing was made. This evidence established plaintiff had complied with one half of the statutory condition precedent. Defendant's admissions, pursuant to CPLR § 3123, by failing to deny or move against the notice to admit, serves as a second method of proof establishing the certified mailing, and further solidifies this proof.
MAILING OF RPAPL § 1304 NOTICE BY FIRST CLASS MAIL NOT PROVEN
Plaintiff's proof fails to establish the mailing of the RPAPL § 1304 notice by regular mail to defendant. By merely making a copy of the notice part of BANA's business records, plaintiff has not established that it was mailed, at best all that plaintiff established was the content of the notice. Unlike the proof of the certified mailing, BANA has no receipt of an independent USPS document that was mailed to it by the USPS as proof that the first class mailing was made or received.
To establish mailing, plaintiff may provide proof of actual mailing or a description of its office's practice and procedure for mailing (see New York & Presby. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept. 2006] ; Citibank, N.A. v. Wood , 150 AD3d 813 [2d Dept. 2017] ; Citimortgage Inc. v. Banks 155 AD3d 936 [2d Dept. 2017] ). Due proof of the mailing of the notice is established by submission of an affidavit of service (see Emigrant Mortgage Co., Inc. v. Persad , 117 AD3d 676 [2d Dept. 2014] ; Bank of NY Mellon v. Aquino , 131 AD3d 1186 [2d Dept. 2015] ; Investors Savings Bank v. Salas , 152 AD3d 752 [2d Dept. 2017] ), an affidavit of mailing (see JPMorgan Chase Bank, NA v. Schott , 130 AD3d 875 [2d Dept. 2015] ; Wells Fargo v. Moza , 129 AD3d 946 [2d Dept. 2015] ) or through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Vivane Etienne Med. Care, P.C. v. Country Wide Ins. Co. , 25 NY3d 498 [2015] ; Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679 [2d Dept. 2001] ); Citimortgage v. Banks , supra; U.S. Bank, N.A. v. Sims , 162 AD3d 825 [2d Dept. 2018] ; Deutsche Bank Natl. Trust Co. v. Heitner , ––– AD3d ––––, 2018 NY Slip Op. 07090 [2d Dept. 2018] ). Here plaintiff's attempt to establish a standard of office practice and procedures for mailing of the notice through the testimony of Mr. Chromiak fails.
Plaintiff misinterprets the cases it relies upon in support of its argument that as these notices were part of the business records of BANA and BANA relied upon them to prove mailing, therefore the mailing is established. More than merely making the documents produced by another a part of your business record and then relying upon them is required. In those cases, the extension of the business records rule to those documents was not merely based upon the party making the other entity's records part of their own business records and then claiming that they relied upon them; the action that they relied upon them for was shown to have occurred in each document, and there was also other corroborating testimony. Here that did not occur, the document plaintiff relied upon is merely a copy of the notice sent back to them, which provided inadequate proof of the mailing process by Walz.
In People v. Cratsley , 86 NY2d 81[1985], the results of the IQ test performed by an independent psychologist who did not testify, but was relied upon by the people's witness, was present and contained the actual results which showed the victim did not have the mental capacity to consent to sexual relations with the defendant. Testimony concerning the relevancy of the IQ findings upon that issue was presented by the witness. In State of New York v. 158th St & Riverside Dr. Housing Co., Inc. , 100 AD3d 1293 [3rd Dept. 2012], the business records of the contractors who performed lab tests and monitored oil spills for the DEC that were then incorporated into the DEC's records and routinely relied upon by the DEC to perform remediation efforts and investigate oil spills, where presented and provided the information therein. In People v. DiSalvo , 284 AD2d 547 [2d Dept. 2001], there was evidence that the records of Resco's employees who entered the information of DiSalvo's dumping in Resco's computer to generate the dump tickets and printouts relied upon by Westchester County were made in the ordinary course of Resco's business and a proper foundation for that was provided by a witness from the Westchester County Department of Environmental Facilities who was a solid-waste analyst and a former scale operator.
Here Mr. Chromiak presented much less information than was presented in those cases plaintiff relied upon. In essence all his testimony established was BANA's practices and procedures were to electronically send the information concerning the notice, defendant's information and his default to Walz; Walz then generated the notices, purportedly mailed them and then electronically sent copies of the notices, now with encoding numbers on them back to BANA. BANA's policy was to accept this electronic communication as proof of mailing and to rely upon that. BANA may have chosen to rely upon that, but that reliance is not sufficient to establish the mailing of the notices in court, whether on a motion for summary judgment or at trial.
Mr. Chromiak provided no information as to what Walz' practices and procedures were to ensure that the notices were properly addressed and mailed. Mr. Chromiak did not establish any familiarity with the procedures at Walz, or that he had received any training from either BANA or Walz as to Walz' mailing procedures. As stated above he knew nothing about Walz other than they did the mailings for BANA. He honestly admitted: "I can't speak to Walz' record keeping." His testimony may establish that it was BANA's policy and practice to accept what was electronically sent to them by Walz to establish mailing of the notices, but that fails to establish the mailing entity's, Walz', practices and procedures which detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed. His trial testimony is similar to testimony from affiants in summary judgment motions who attest only that they have reviewed business records and those records show the notices were mailed, without providing those records or establishing how they know they were mailed; such testimony has been found to be insufficient to establish the mailings (see JPMorgan Chase Bank, N.A. v. Kutch , 142 AD3d 536 [2d Dept. 2016] ; Cenlar FSB v. Censor , 139 AD3d 781 [2d Dept. 2016] ; CitiMortgage, Inc. v. Pappas , 147 AD3d 900 [2d Dept. 2017] ; Wells Fargo Bank, NA v. Trupia , 150 AD3d 1049 [2d Dept. 2017] ; Bank of NY Mellon v. Zavolunov , 157 AD3d 754 [2d Dept. 2018] ; Bank of America, NA v. Wheatley , 158 AD3d 736 [2d Dept. 2018] ; US Bank, NA v. Henderson , 163 AD3d 601[2d Dept. 2018] ).
As Mr. Chromiak's testimony fails to establish BANA's mailing of the notice by regular first class mail, plaintiff has failed to establish its strict compliance with the mailing requirements of RPAPL § 1304. In failing to establish this condition precedent plaintiff has not met its burden of proof on this trial, it is not entitled to judgment, and its complaint is dismissed (see Aurora Loan Services, LLC v. Weisblum , 83 AD3d 95 [2d Dept. 2011] ); upon the payment of any appropriate fees to the Suffolk County Clerk any notice of pendency filed in regards to this action is discharged.
Submit judgment upon notice.