Opinion
066725/2014
10-30-2020
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAMP TRUST 2007-SEA1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-SEA1, Plaintiff, v. Lisa WOOD, Kevin C. Wood, Bank of America, N.A., Ron Carter, Teresa Manning Carter, Defendants.
GROSS POLOWY, Attorneys for Plaintiff, 1775 Wehrle Drive, Suite 100, Williamsville, NY 14221 RICHARD J. SULLIVAN, ESQ., Attorney for Defendants Wood, P.O. Box 582, Port Jefferson, NY 1177
GROSS POLOWY, Attorneys for Plaintiff, 1775 Wehrle Drive, Suite 100, Williamsville, NY 14221
RICHARD J. SULLIVAN, ESQ., Attorney for Defendants Wood, P.O. Box 582, Port Jefferson, NY 1177
Robert F. Quinlan, J.
Upon the following papers read on plaintiff's successive motion for summary judgment and appointment of a referee pursuant to RPAPL § 1321 : plaintiff's notice of motion and supporting papers: NYSCEF Docs. # 34-40; defendants' affirmation in opposition consisting of three non-E-filed pages; plaintiff's reply: NYSCEF Docs #43 ; and
UPON the telephone conference in this action held on October 30, 2020 between the court and parties in compliance with the requirements of AO/157/20 of the Chief Administrative Judge of the Courts, dated July 23, 2020, and counsel for both parties having appeared; it is
ORDERED that plaintiff Deutsche Bank National Trust Company, as Trustee for GSAMP Trust 2007-SEA1, Mortgage Pass-Through Certificates, Series 2007-SEA1's motion for an order granting summary judgment dismissing and striking defendants' answer after the court's written decision of June 27, 2018, and for the appointment of a referee pursuant to RPAPL § 1321 is denied; and it is further
ORDERED that plaintiff's proposed order submitted with this motion, is marked "Not Signed;" and it is further
ORDERED that no further successive summary judgments are authorized; and it is further
ORDERED that the action is scheduled for a conference before another justice of this court, to be assigned, on February 22, 2021 at 9:30 AM to schedule a trial of this action.
PRIOR HISTORY
The prior history of this action to foreclose a mortgage upon residential real property located at 39 Ridgefield Drive, Shoreham, Suffolk County, New York ("the property") given by defendants Lisa Wood and Kevin C. Wood ("defendants") to a predecessor in interest to plaintiff Deutsche Bank National Trust Company, as Trustee for GSAMP Trust 2007-SEA1, Mortgage Pass-Through Certificates, Series 2007-SEA1 ("plaintiff") is set forth in the written decision of the court dated June 27, 2018. That decision granted plaintiff's motion to amend the caption, dismissed all of defendants' affirmative defenses, fixed and set the default of the non-answering defendants, but denied plaintiff's motion for summary judgment and appointment of a referee to compute pursuant to RPAPL § 1321 as in opposition to plaintiff's motion defendants' counsel had raised the issue of plaintiff's failure to establish the statutory condition precedent to suit of the mailing of the notices required by RPAPL § 1304 (see First Natl. Bank of Chicago v Silver , 73 AD3d 162 [2d Dept 2010] ; Aurora Loan Services v Weisblum , 85 AD3d 95 [2d Dept 2011] ; Deutsche Bank Natl. Trust Co. v Starr , 173 AD3d 836 [2d Dept 2019] ). As plaintiff's submissions had failed to establish the required mailings by evidence in admissible form, the court set this sole issue for a limited issue trial pursuant to CPLR 3212 (g) and 2218, and authorized successive summary judgment motions to be filed within 60 days of the filing of the note of issue. After entering into a compliance conference/certification order, and filing a note of issue on September 25, 2018, plaintiff timely filed the present motion. On October 30, 2020 a phone conference in compliance with AO/157/20 was held at which counsel for both parties appeared. As the requirements of AO/157/2020 have been met, the motion will be decided.
MAILING OF RPAPL § 1304 NOTICES NOT ESTABLISHED
The affidavit of Ann Gleason Majors, a Vice-President of plaintiff's servicer, Wells Fargo Bank, N.A. ("Wells Fargo), which plaintiff relies upon to provide proof in admissible form of the mailings of the notices required by RPAPL § 1304 ("the notices") is insufficient to provide such proof. The affiant does establish her ability to testify to Wells Fargo's business records pursuant to CPLR 4518 (a), and does discuss the mailing practices and procedures of Wells Fargo, but her statements are inadmissable hearsay as other than a copy of an unsigned USPS Domestic Return Receipt addressed to both defendant/borrowers at the property, and a copy of the unclaimed certified letter sent to the defendants/borrowers at the property, she provides no copies of the other business records of Wells Fargo which she reviewed to reach her conclusory statements. It is those business records which are admissible pursuant to CPLR 4518 (a), and necessary to establish the proof needed to show compliance with the mailing requirements of the notices, not her conclusory hearsay statements.
Unsubstantiated and conclusory statements in the affidavits of plaintiff's representatives, along with dated copies of the notice of default (which here are not provided as exhibits to her affidavit, although submitted as a later exhibit by counsel), are insufficient to prove that the notices required by RPAPL § 1304 were properly mailed (see Wells Fargo Bank, N.A. v Sakizada , 168 AD3d 789 [2d Dept 2019] ; US Bank, N.A. v Cope , 175 AD3d 527 [2d Dept 2019] ). 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 & Presbyt. Hosp. v Allstate Ins. Co. , 29 AD3d 547 [2d Dept 2006] ; Wells Fargo Bank, N.A. v Taylor , 170 AD3d 921 [2d Dept 2019] ). This can be accomplished by an affidavit of service (see Emigrant Mortgage Co., Inc. v Persad, 117 AD3d 676 [2d Dept 2014] ; 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] ; Bank of New York Mellon v Gordon, 171 AD3d 197 [2d Dept 2019] ; US Bank, N.A. v Cope , 175 AD3d 527 ). Even if an affiant establishes the ability to testify as to business records pursuant to CPLR 4518 (a), if the affiant merely states a review of the records establishes the notices were mailed on a certain date, that testimony is insufficient to establish the mailing required by RPAPL § 1304 without inclusion of copies of the records reviewed (see US Bank, NA v Henderson , 163 AD3d 601[ 2d Dept 2018] ; CitiMortgage, Inc. v Osorio , 174 AD3d 496 [2d Dept 2019] ; Bank of America, N. A. v Lauro , 186 AD3d 659 [2d Dept, 2020] ).
Where an affiant establishes her ability to testify as to plaintiff's business records, describes uniform procedure for mailing notices, provides copies of records that establish mailing and provides a date on which the mailing was sent, that testimony is sufficient to establish mailing of the notices (see Citimortgage, Inc. v Goldberg , 179 AD3d 1006 [2d Dept 2020] ). Ms. Majors' affidavit, without the attached records, does not meet this standard.
The court also notes that the mailing of the notices were not done by Wells Fargo Bank, N.A., but rather, as indicated on the returned unclaimed letter attached to Ms. Majors' affidavit and the copies of the notices submitted by counsel as Exhibit "H" on the motion, by Wells Fargo Home Mortgage, a different entity. Perhaps this issue can be resolved by testimony at trial concerning the relationship between the entities, by testimony consistent with the principle of "boarding" of other entities records as described in Bank of New York Mellon v Gordon, 171 AD3d 197, or if the witness can testify to familiarity with Wells Fargo Home Mortgage's mailing practices and procedures (see CitiBank, N.A. v Conti-Scheurer , 172 AD3d 17 [2d Dept 2019] ; LNV Corp. v Sofer , 171 AD3d 1033 [2d Dept 2019] ).
The court finds that the content of the notices, as well as the list of housing counseling agencies in the region as set by the language of RPAPL § 1304 (2) at the time the notices were purportedly mailed are sufficient.
As plaintiff's successive summary judgment motion is denied, the action is to be set for a limited issue trial. No further successive summary judgment motions may be filed (see Brill v City of New York , 2 NY3d 648 [2004] ; Nationstar Mtg., LLC v Weisblum , 143 AD3d 866 [2d Dept 2016] ).
As this court is being involuntarily retired as of December 31, 2020, the action is scheduled for a conference before another justice of this court to be assigned, on February 22, 2021 at 9:30 AM to set a trial date for this action.
This constitutes the decision and order of the court.