Opinion
Nos. 2022-00289 2022-00290 Index No. 14285/13
05-29-2024
Green Tree Servicing, LLC, respondent, v. Donna Helmsorig, etc., appellant, et al., defendants.
Christopher Thompson, West Islip, NY, for appellant. Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Samantha Sandler of counsel), for respondent.
Christopher Thompson, West Islip, NY, for appellant.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Samantha Sandler of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., PAUL WOOTEN, CARL J. LANDICINO, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Donna Helmsorig appeals from two orders of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), both dated December 3, 2021. The first order, insofar as appealed from, granted those branches of the plaintiff's renewed motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference. The second order, insofar as appealed from, granted the same relief to the plaintiff and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.
ORDERED that the orders are reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the plaintiff's renewed motion which were for summary judgment on the complaint insofar as asserted against the defendant Donna Helmsorig and for an order of reference are denied.
In 2006, William Helmsorig, Jr., now deceased (hereinafter the decedent), together with his wife, the defendant Donna Helmsorig (hereinafter the defendant), executed a note in favor of Mortgage Bankers Corp. in order to finance the purchase of certain property in Islip Terrace (hereinafter the property). On the same date, the decedent and the defendant executed a mortgage securing the note and encumbering the property.
In May 2013, the plaintiff, as the alleged holder of the note and mortgage, commenced this action to foreclose the mortgage against, among others, the defendant. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated July 23, 2018, the Supreme Court, among other things, denied those branches of the plaintiff's motion with leave to renew within 120 days of the order, determining, inter alia, that the plaintiff failed to establish, prima facie, its compliance with RPAPL 1304. Thereafter, the plaintiff filed a renewed motion, among other things, for summary judgment. In an order dated December 3, 2021, the court, inter alia, granted those branches of the plaintiff's renewed motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In a separate order, also dated December 3, 2021, the court, among other things, granted the same relief to the plaintiff and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. The defendant appeals from the orders dated December 3, 2021.
"Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Wells Fargo Bank, N.A. v Yapkowitz, 199 A.D.3d 126, 131-132 [citations and internal quotation marks omitted]). Pursuant to RPAPL 1304(1), "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "RPAPL 1304(2) requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower and to the residence that is the subject of the mortgage" (Caliber Home Loans, Inc. v Weinstein, 197 A.D.3d 1232, 1236). "A plaintiff demonstrates its compliance with the statute 'by proof of the requisite mailing, which can be established [by] 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 Pickering-Robinson, 197 A.D.3d 757, 759, quoting Citibank, N.A. v Conti-Scheurer, 172 A.D.3d 17, 21).
Contrary to the plaintiff's contention, the defendant was entitled to notice pursuant to RPAPL 1304 as a "borrower" within the meaning of that statute. Although the defendant did not sign the subject note, she executed the mortgage as "Borrower" and is a title owner of the property. "'Where, as here, a homeowner defendant is referred to as a "borrower" in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a 'borrower' for the purposes of RPAPL 1304, notwithstanding... any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured'" (HSBC Bank USA, N.A. v Kalenborn, 215 A.D.3d 930, 932, quoting Deutsche Bank Natl. Trust Co. v Weininger, 206 A.D.3d 882, 883; see Bank of N.Y. Mellon v Forman, 176 A.D.3d 663, 665-666). Here, since the defendant "signed the mortgage as a 'borrower' and, in that capacity, agreed to pay the amounts due under the note, she was entitled to... notice pursuant to RPAPL 1304" (Deutsche Bank Natl. Trust Co. v Weininger, 206 A.D.3d at 884).
Furthermore, the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. In support of its renewed motion, the plaintiff submitted, inter alia, an affidavit of mailing of Kenneth Dewayne Cast, Jr., an employee of the plaintiff's then loan servicer. However, Cast neither attested that he had personal knowledge of the mailings, nor presented "proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, including 'how the mail was transmitted to the postal service'" (Freedom Mtge. Corp. v King, 215 A.D.3d 923, 925, quoting CIT Bank N.A. v Schiffman, 36 N.Y.3d 550, 556; see Wells Fargo Bank, N.A. v Cascarano, 208 A.D.3d 729, 730-731). In addition, although the plaintiff submitted copies of 90-day notices addressed to the defendant accompanied by envelopes bearing a "First-Class Mail" postage paid stamp and containing a bar code above a 20-digit number, the plaintiff failed to submit any receipt or corresponding document proving that the notices were actually sent by first-class and certified mail to the defendant more than 90 days prior to the commencement of this action (see U.S. Bank N.A. v Kissi, 219 A.D.3d 1551, 1554; U.S. Bank, N.A. v Zientek, 192 A.D.3d 1189, 1191; Deutsche Bank Natl. Trust Co. v Feeney, 188 A.D.3d 997, 998).
Moreover, whereas the 90-day notices sent to the defendant stated that as of July 19, 2012, the loan was 48 days in default, reflecting a date of default of June 1, 2012, the complaint and the notice of default sent to the defendant listed the date of default as December 1, 2012. Thus, the plaintiff failed to eliminate a triable issue of fact as to whether the 90-day notices were defective on their face (see U.S. Bank N.A. v Cox, 203 A.D.3d 1206, 1210). To address this discrepancy as to the date of default, the plaintiff submitted with its reply papers an affidavit from Stewart Derrick, an employee of the plaintiff's then loan servicer. However, the plaintiff's submission of an affidavit with its reply papers could not be used to satisfy its prima facie burden (see HSBC Bank USA, N.A. v Sene, 219 A.D.3d 1499, 1501). In any event, Derrick's affidavit raised a triable issue of fact as to whether the plaintiff was required to send new 90-day notices to the defendant pursuant to RPAPL 1304. Derrick averred in his affidavit that after the defendant defaulted on the amount owed on June 1, 2012, the defendant made subsequent late payments, which were applied to the amounts due for the months of June through November 2012, and the defendant then defaulted in paying the amount due on December 1, 2012. Thus, Derrick's affidavit raised a triable issue of fact as to whether the defendant cured the delinquency stated in the 90-day notices, but defaulted again in the same 12-month period, thereby requiring the plaintiff to send new 90-day notices (see RPAPL 1304[4]).
Accordingly, since the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304, the Supreme Court should have denied those branches of the plaintiff's renewed motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
The parties' remaining contentions either are improperly raised for the first time on appeal, need not be reached in light of our determination, or are without merit.
CONNOLLY, J.P., WOOTEN, LANDICINO and VENTURA, JJ., concur.