17 Civ. 2288 (RRM) (SIL), 2019 WL 4014842, at *5 (E.D.N.Y. May 28, 2019), report & recommendation adopted sub nom. Wilmington Sav. Fund Soc'y, FSB as Tr. for Carlsbad Funding Mortg. Tr. v. White, 2021 WL 2548971 (E.D.N.Y. June 22, 2021) (denying in part motion for summary judgment for lack of compliance with § 1304 where plaintiff had “not furnished any uncontroverted United States Postal Service records, such as certified mailing receipts or certificates of first-class mailing,” but “relie[d] on copies of mailing labels”) (internal quotation marks & citations omitted); see Monteleone, 2022 WL 4274936, at *7 (denying default judgment where the plaintiff claimed to have attached certified mailing receipts for § 1304 notices to an affidavit entered in support of a motion for default judgment but did not do so, and the plaintiff did not provide other proof of actual mailing); U.S. Bank, Nat'l Ass'n v. Zientek, 192 A.D.3d 1189, 1191, 146 N.Y.S.3d 169 (2d Dep't 2021) (“[A]lthough the envelopes accompanying the 90-day notices state ‘First-Class Mail' and contain 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[.]”); Wells Fargo Bank, N.A. v. Trupia, 150 A.D.3d 1049, 1050-51, 55 N.Y.S.3d 134 (2d Dep't 2017) (holding that a plaintiff did not comply with § 1304 where the affiant “did not aver that she was familiar with the plaintiff's mailing practices and procedures” and where certified mail receipt “contained no language indicating that it was issued by the United States Postal Service”)
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
Affiant did not claim to have personal knowledge of the mailing itself, professed no familiarity personal familiarity with Bayview's mailing practices and procedures, nor described Bay view's that procedure in any detail (cf United States Bank Trust, N.A. v. Mehl, 195 A.D.3d 1054 [2d Dept 2021]; see also Freedom Mtge CorpvGranger, 188 A.D.3d 11631165 [2d Dept 2020]; M & T Bank v Biordi, 176 A.D.3d 11941196 [2d Dept 2019; c/ Citimortgage, Inc. v Ustick, 188 A.D.3d 793, 794 [2d Dept 2020]). 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]).
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]).
Separately, although the affidavit states that certified mailing receipts were attached, no receipts were in fact attached—the copies of notices attached to the affidavit contain mail bar codes, which are not the same thing as certified mailing receipts. E.g., U.S. Bank, Nat'l Ass'n v. Zientek, 192 A.D.3d 1189, 1191, 146 N.Y.S.3d 169 (2d Dep't 2021) ("[A]lthough the envelopes accompanying the 90-day notices state 'First-Class Mail' and contain 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[.]").
Separately, although the affidavit states that certified mailing receipts were attached, no receipts were in fact attached-the copies of notices attached to the affidavit contain mail bar codes, which are not the same thing as certified mailing receipts. E.g., U.S. Bank, Nat'l Ass'n v. Zientek, 192 A.D.3d 1189, 1191 (2d Dep't 2021)
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).
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). The plaintiff's submission also failed to demonstrate that the RPAPL 1304 notices allegedly sent to the defendants contained the requisite list of five housing counseling agencies serving the region in which the subject property is located, i.e., the Mid-Hudson region (see RPAPL former 1304[2]).
The defendants appeal. "[I]n order to establish entitlement to summary judgment, the plaintiff must show that it complied with any conditions precedent to commencing the action contained in the mortgage agreement itself" ( McCormick 110, LLC v. Gordon, 200 A.D.3d 672, 675, 159 N.Y.S.3d 83 ). "[P]roof of the requisite mailing ... can be established with 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. Zientek, 192 A.D.3d 1189, 1191, 146 N.Y.S.3d 169 [internal quotation marks omitted]). Here, the plaintiff failed to establish, prima facie, that it complied with the notice of default provisions of the mortgage, which, inter alia, required the plaintiff to send the notice by first-class mail to the subject property and to provide a 30–day cure period.
re action where it is the holder or assignee of the underlying note at the time the action is commenced (seeAurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d 827, 828, 33 N.Y.S.3d 414 ). "[A]n assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery" ( Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532 ; seeAurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). Here, the plaintiff demonstrated that it had standing to commence the instant action by attaching a copy of the note, with an allonge endorsing the note in blank, to the complaint (seeU.S. Bank, N.A. v. Zientek, 192 A.D.3d 1189, 1190, 146 N.Y.S.3d 169 ; Deutsche Bank Natl. Trust Co. v. Karibandi, 188 A.D.3d 650, 652, 134 N.Y.S.3d 464 ). In opposition, the defendant failed to raise a triable issue of fact.