Opinion
7811-7812 Index 109882/09
12-06-2018
WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE FOR NORMANDY MORTGAGE Loan Trust, etc., Plaintiff–Respondent, v. Sharay Hayes, Defendant–Appellant, New York City Environmental Control Board, et al., Defendants.
Rozario & Associates, P.C., New York (Rovin R. Rozario of counsel), for appellant. Knuckles, Komosinski & Manfro LLP, Elmsford (Louis A. Levithan of counsel), for respondent.
Rozario & Associates, P.C., New York (Rovin R. Rozario of counsel), for appellant.
Knuckles, Komosinski & Manfro LLP, Elmsford (Louis A. Levithan of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Kahn, Kern, JJ.
Plaintiff failed to prove that the 90–day notice required by RPAPL 1304 and the 30–day notice required by defendant Hayes's mortgage were actually mailed to defendant (see American Tr. Ins. Co. v. Lucas, 111 A.D.3d 423, 974 N.Y.S.2d 388 [1st Dept. 2013] ). The sole documentary proof of actual mailing was a printout that was never admitted at trial; rather, the trial court erroneously allowed plaintiff's witness to read from the unadmitted document (see Jemmott v. Lazofsky, 5 A.D.3d 558, 560, 772 N.Y.S.2d 840 [2d Dept. 2004] ; Chase Bank USA, N.A. v. Hershkovits, 28 Misc.3d 1202[A], 2010 N.Y. Slip Op. 51122[U], 2010 WL 2598198 [Civ. Ct., Kings County 2010] ).
However, plaintiff established a rebuttable presumption of mailing through its witness Eric Wheeler's detailed testimony about how the 90– and 30–day notices were generated, addressed, and mailed, and how their mailing was documented (see American Tr. Ins. Co., 111 A.D.3d at 424, 974 N.Y.S.2d 388 ). At the time of trial, Wheeler was an employee of the servicer for the loan, and had reviewed the documents because they had been "boarded" over to the servicer as part of its regular business. Moreover, he had been employed at JPMorgan Chase, plaintiff's assignor of the note and mortgage, at the time of the mailings, and thus had full knowledge of the relevant office procedures (see HSBC Bank USA v. Rice, 155 A.D.3d 443, 443–44, 63 N.Y.S.3d 382 [1st Dept. 2017] ).
Defendant argues that plaintiff lacked standing to commence this foreclosure action because it failed to show that Mortgage Electronic Registration Systems, Inc. (MERS) had authority to assign the underlying mortgage note (citing Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532 [2d Dept. 2011] ). However, MERS is irrelevant here. The consolidated note upon which plaintiff sued was given by defendant directly to Washington Mutual (the assets of which were acquired by JPMorgan Chase in 2008) (see Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 877 N.Y.S.2d 200 [2d Dept. 2009] ). Defendant does not challenge the authority of Washington Mutual and later JPMorgan Chase to assign the consolidated note to plaintiff.