U.S. Bank v. Hammer

33 Citing cases

  1. Wells Fargo Bank v. Murray

    208 A.D.3d 924 (N.Y. App. Div. 2022)   Cited 4 times

    The defendants appeal. "[P]roper service of RPAPL 1304 notice on 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" ( U.S. Bank N.A. v. Hammer, 192 A.D.3d 846, 847–848, 143 N.Y.S.3d 695 [internal quotation marks omitted]). "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" ( id. at 848, 143 N.Y.S.3d 695 [internal quotation marks omitted]; see RPAPL 1304[2] ; Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1016, 76 N.Y.S.3d 182 ; Wells Fargo Bank, N.A. v. Trupia, 150 A.D.3d 1049, 1050, 55 N.Y.S.3d 134 ).

  2. Wilmington Sav. Fund Soc'y v. Kutch

    202 A.D.3d 1030 (N.Y. App. Div. 2022)   Cited 7 times

    The defendant appeals. "[P]roper service of RPAPL 1304 notice on 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" ( Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 106, 923 N.Y.S.2d 609 ; seeU.S. Bank N.A. v. Hammer, 192 A.D.3d 846, 847–848, 143 N.Y.S.3d 695 ). "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" ( Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1016, 76 N.Y.S.3d 182 [internal quotation marks omitted]; see RPAPL 1304[2] ; U.S. Bank N.A. v. Hammer, 192 A.D.3d at 848, 143 N.Y.S.3d 695 ).

  3. Wilmington Sav. Fund Soc'y v. Kutch

    2022 N.Y. Slip Op. 1066 (N.Y. Sup. Ct. 2022)

    The defendant appeals. "[P]roper service of RPAPL 1304 notice on 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" (Aurora Loan Servs., LLC v Weisblum, 85 A.D.3d 95, 106; see U.S. Bank N.A. v Hammer, 192 A.D.3d 846, 847-848). "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" (Wells Fargo Bank, NA v Mandrin, 160 A.D.3d 1014, 1016 [internal quotation marks omitted]; see RPAPL 1304[2]; U.S. Bank N.A. v Hammer, 192 A.D.3d at 848).

  4. Deutsche Bank Natl. Tr. Co. v. Pariser

    2022 N.Y. Slip Op. 4534 (N.Y. App. Div. 2022)

    Here, the plaintiff failed to establish, prima facie, that RPAPL 1304 notices were mailed to each defendant by certified and first-class mail. The affidavit submitted in support of the plaintiff's motion does not contain an attestation that the affiant had personal knowledge of the purported mailings nor does the affiant attest to knowledge of the mailing practices of the Law Offices of McCabe, Weisberg, and Conway, P.C., the entity that allegedly sent the notices to the defendants on behalf of the loan servicer (see U.S. Bank N.A. v Hammer, 192 A.D.3d 846, 849; Citibank, N.A. v Conti-Scheurer, 172 A.D.3d at 21; Bank of Am., N.A. v Bittle, 168 A.D.3d 656, 658). Moreover, the plaintiff failed to submit an affidavit of service or any document from the United States Postal Service establishing that the mailing actually occurred (see U.S. Bank, N.A. v Zientek, 192 A.D.3d 1189, 1191; U.S. Bank N.A. v Hammer, 192 A.D.3d at 848-849; M & T Bank v Barter, 186 A.D.3d 698, 701).

  5. Emigrant Bank v. Cohen

    No. 2022-02532 (N.Y. App. Div. Apr. 20, 2022)

    The plaintiff has the burden of establishing its prima facie entitlement to summary judgment by proof in admissible form (see Bank of N.Y. Mellon v DeLoney, 197 A.D.3d 548, 549; Capital One, N.A. v Liman, 193 A.D.3d 808; Selene Fin., L.P. v Coleman, 187 A.D.3d 1082; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d at 782). The plaintiff "cannot meet its prima facie burden by submitting evidence for the first time in reply" (U.S. Bank N.A. v Hammer, 192 A.D.3d 846, 849; Arriola v City of New York, 128 A.D.3d 747, 749). "Standing in residential mortgage foreclosure actions may be established any of three ways": (1) "where the plaintiff is the original lender in direct privity with the defendant"; (2) "where the plaintiff is a holder in physical possession of the note prior to the commencement of the action, with an allonge or indorsement in blank" or special indorsement to the plaintiff; or (3) "when the note underlying an action was assigned to the plaintiff prior to the date of commencement of the action" (Wilmington Sav. Fund Socy., FSB v Matamoro, 200 A.D.3d 79, 90-91; see also UCC 1-201[b][21][A] [as to physical possession]; UCC 3-204[2] [same]; Ocwen Loan Servicing, LLC v Schacker, 185 A.D.3d 1041, 1043 [same]; Bank of N.Y. Mellon Trust Co., NA v Obadia, 176 A.D.3d 1020, 1022 [same]; Deutsche Bank Natl. Trust Co. v Brewton, 1

  6. Emigrant Bank v. Cohen

    205 A.D.3d 103 (N.Y. App. Div. 2022)   Cited 21 times

    The plaintiff has the burden of establishing its prima facie entitlement to summary judgment by proof in admissible form (seeBank of N.Y. Mellon v. DeLoney, 197 A.D.3d 548, 549, 153 N.Y.S.3d 64 ; Capital One, N.A. v. Liman, 193 A.D.3d 808, 142 N.Y.S.3d 411 ; Selene Fin., L.P. v. Coleman, 187 A.D.3d 1082, 134 N.Y.S.3d 357 ; Tri–State Loan Acquisitions III, LLC v. Litkowski, 172 A.D.3d at 782, 100 N.Y.S.3d 356 ). The plaintiff "cannot meet its prima facie burden by submitting evidence for the first time in reply" ( U.S. Bank N.A. v. Hammer, 192 A.D.3d 846, 849, 143 N.Y.S.3d 695 ; Arriola v. City of New York, 128 A.D.3d 747, 749, 9 N.Y.S.3d 344 ). "Standing in residential mortgage foreclosure actions may be established any of three ways": (1) "where the plaintiff is the original lender in direct privity with the defendant"; (2) "where the plaintiff is a holder in physical possession of the note prior to the commencement of the action, with an allonge or indorsement in blank" or special indorsement to the plaintiff; or (3) "when the note underlying an action was assigned to the plaintiff prior to the date of commencement of the action" ( Wilmington Sav. Fund Socy., FSB v. Matamoro, 200 A.D.3d 79, 90–91, 156 N.Y.S.3d 323 ; see also UCC 1–201[b][21][A] [as to physical possession]; UCC 3–204[2] [same] ; Ocwen Loan Servicing, LLC v. Schacker, 185 A.D.3d 1041, 1043, 129 N.Y.S.3d 91 [same]; Bank of N.Y. Mellon Trust Co., NA v. Obadia, 176 A.D.3d 1020, 1022, 111 N.Y.S.3d 59 [same]; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25 [same]; Au

  7. Caliber Home Loans, Inc. v. Weinstein

    197 A.D.3d 1232 (N.Y. App. Div. 2021)   Cited 27 times

    Here, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. Although Cantu stated in his affidavit that the RPAPL 1304 notices were mailed by certified and first-class mail to the defendants at the property, and he attached copies of 90–day notices with corresponding certified and first-class envelopes, Cantu did not attach the 90–day notices and envelopes addressed to the property where the defendants resided or any United States Post Office documentation showing that the purported mailings to the property actually occurred (seeU.S. Bank N.A. v. Hammer, 192 A.D.3d 846, 848–849, 143 N.Y.S.3d 695 ). To the extent the plaintiff relies on copies of the 90–day notices with corresponding certified and first-class envelopes addressed to the property which were submitted for the first time in its reply papers on its subsequent motion, inter alia, to confirm the referee's report, those documents were insufficient to satisfy the plaintiff's prima facie burden on its initial motion, among other things, for summary judgment (seeid.

  8. HSBC Bank U.S., Nat'l Ass'n v. Ji Youn Min

    2024 N.Y. Slip Op. 32151 (N.Y. Sup. Ct. 2024)

    Raab and Walace did not claim to have personal knowledge of the mailing itself and did not annex any records reviewed to support their assertions that SPS complied with its standard practice (cf United States Bank Trust, N.A. v. Mehl, 195 A.D.3d 1054 [2d Dept 2021]). Further, documentary proof that the certified and first-class mailings actually occurred was absent (see U.S. Bank v Zientek, 192 A.D.3d 1189, 1191 [2d Dept 2021]; US Bank v Hammer, 192 A.D.3d 846, 848-849 [2d Dept 2021]). Mere annexation of the notices with a bar code and 10-digit code number

  9. The Bank of N.Y. Mellon v. Bosboom

    2023 N.Y. Slip Op. 33845 (N.Y. Sup. Ct. 2023)

    Further, documentary proof that the certified and first-class mailings occurred was absent (see U.S. BankvZientek, 192 A.D.3d 1189, 1191 [2d Dept 2021]; US Bank v Hammer, 192 A.D.3d 846, 848-849 [2d Dept 2021]). Mere annexation of the notices with a bar code and 10-digit code number does not constitute proof the notice was delivered to the postal authority (see U.S. Bank N.A.vHammer, 192 A.D.3d 846 [2d Dept 2021];

  10. HSBC Bank U.S. v. Ji Youn Min

    2023 N.Y. Slip Op. 31749 (N.Y. Sup. Ct. 2023)

    Raab and Walace did not claim to have personal knowledge of the mailing itself and did not annex any records reviewed to support their assertions that SPS complied with its standard practice (cf. United States Bank Trust, N.A. v. Mehl, 195 A.D.3d 1054 [2d Dept 2021]). Further, documentary proof that the certified and first-class mailings actually occurred was absent (see U.S. Bank v Zientek, 192 A.D.3d 1189, 1191 [2d Dept 2021]; US Bank v Hammer, 192 A.D.3d 846, 848-849 [2d Dept 2021]). Mere annexation of the notices with a bar code and 10-digit code number does not constitute proof the notice was mailed (see U.S. Bank N.A. v Hammer, 192 A.D.3d 846 [2d Dept 2021]; U.S. Bank, N.A. v Zientek, 192 A.D.3d 1189 [2d Dept 2021]).