Opinion
609211-2015
01-22-2019
WELLS FARGO BANK, N.A., Plaintiff, v. Miguel RODRIGUEZ a/ka/ Miguel A. Rodriguez; Debra Rodriguez a/k/a Debra Ann Rodriguez; Suffolk County Dept. of Social Services; New York State Department of Taxation and Finance, Defendants.
SHAPIRO, DICARO & BARAK, LLC, Attorneys for Plaintiff, 175 Mile Crossing Blvd, Rochester, NY 14624 RONALD D. WEISS, P.C., Attorney for Defendants, Rodriguez 734 Walt Whitman Road, Ste. 203, Melville, NY 11747
SHAPIRO, DICARO & BARAK, LLC, Attorneys for Plaintiff, 175 Mile Crossing Blvd, Rochester, NY 14624
RONALD D. WEISS, P.C., Attorney for Defendants, Rodriguez 734 Walt Whitman Road, Ste. 203, Melville, NY 11747
Robert F. Quinlan, J.
Upon the following papers read on plaintiff's motion for summary judgment and appointment of a referee to compute pursuant (Mot. Seq. # 003): NYSCEF Docs # 49-59 ; defendants' opposition: NYSCEF Docs # 62-71 ; and plaintiff's reply: NYSCEF Docs # 74-75 ; it is
ORDERED that plaintiff Wells Fargo Bank's motion for summary judgment on the limited issue remaining for trial after the decision of the court placed on the record after oral argument on April 13, 2017 (Mot. Seq. # 001 and # 002), and for an appointment of a referee pursuant to RPAPL § 1321, is denied; and it is further
ORDERED that this action is scheduled for limited issue trial before this part in accordance with the terms this order on Monday, March 18, 2019 at 9:30 AM , in Part 27, Arthur M. Cromarty Court Complex, 210 Center Drive, 4th floor, Rm 17, Riverhead, NY.
PRIOR PROCEEDINGS
This is an action to foreclose a mortgage on residential real property located at 1282 Isabel Lane, Bay Shore, Suffolk County, New York. The prior history of this action is contained in the court's decision set forth on the record on April 13, 2017 after oral argument of plaintiff Wells Fargo Bank, N.A.'s ("plaintiff") prior motion for summary judgment (Mot. Seq. # 001) and defendants Miguel Rodriguez and Debra Rodriguez' ("defendants") motion which requested the action be returned to the court's dedicated Foreclosure Settlement Conference Part (Mot. Seq. # 002). Defendants' motion was denied and plaintiff was granted default against the non-appearing defendants, amendment of the caption and partial summary judgment pursuant to CPLR 3212 (g) dismissing eight of defendants' nine affirmative defenses, but not their Seventh Affirmative Defense which raised issues of compliance with the mailing requirements of the notices required by RPAPL § 1304. The court set that single issue for a limited issue trial pursuant to CPLR § 2218, issuing a written discovery and scheduling order, authorizing limited discovery on the issue and setting a compliance/certification conference for August 16, 2017 and authorizing the parties to file successive summary judgment motions on the issue within 30 days of the filing of a note of issue. Plaintiff filed the note of issue on September 18, 2017, and filed this motion on October 18, 2017. The parties executed stipulations adjourning the submission of the motion to February 1, 2018 and then to May 21, 2018 at which time it was submitted.
MAILINGS OF RPAPL § 1304 NOTICES NOT PROVEN
Plaintiff submits an affidavit of one of its vice presidents in an attempt to establish mailing. Contrary to the arguments of defendants' counsel in opposition, she proves her ability to testify to plaintiff's business records pursuant to CPLR 4518 (a), establishing all elements required by that statute. She testifies that a review of those records show that plaintiff had mailed the notice with a list of at least five housing counseling agencies in the Long Island region to defendants by both regular first class mail and certified mail on April 15, 2015, more than ninety days before the filing of this action with the Suffolk County Clerk on August 26, 2015. She refers to copies of the notices which were maintained in plaintiff's computer files and attached as exhibits to her affidavit, along with a copy of the filing with the Department of Financial Services ("DFS") required by RPAPL § 1306 which shows "Mailing Date Step 1: 15-APR-15." She describes how "it is Wells Fargo's regular practice to import and retain on file a copy of all 90-day pre-foreclosure notices, created and stored at or near the time of processing and generation by authorized persons." She goes on to state that the notices sent to defendants here were imported and retained by the WALZ Track-Right system ("WALZ system") used by plaintiff on April 15, 2015 and claims that plaintiff relies on the WALZ system as proof of compliance with the mailing requirements for such notices "in the normal course of business," and states that a copy of the WALZ system results for mailing of both notices is annexed as Exhibit "B" to her affidavit.
In opposition, defendant submits an affirmation of counsel and the affidavit of defendant Debra Ann Rodriguez which states that she never received the mailings (although her co-defendant submitted a similar affidavit in support and opposition to Mot. Seq. # 001 and # 002, defendants do not submit that affidavit with this motion nor refer to it). Although defendants' counsel states in paragraph 15 of his affirmation: "Therefore, based on defective(sic) 90 day letter... Defendant's Cross-Motion be granted," there is no cross-motion to dismiss. Plaintiff's obligation under RPAPL § 1304 is not to establish receipt by defendants of the notices, only that they were mailed to them. Here there is no argument by defendants that the address contained on the notices was improper.
Defendants make multiple arguments claiming that the notices and their mailing were defective, all of which are without merit. Besides claiming that there is no proof that the notices were received, defendants claim that the notices were defective because no one signed them and that there was no tracking number for the notices. In apparent support of this last claim, defendants' counsel attached a purported printout from a US Postal Service ("USPS") site, obtained on January 14, 2018. Whether this document is admissible or not, it does not state that the certified number associated with the certified mailing does not exist, only that it is not in the system, a fact supported by plaintiff's counsel's reply (whether it too is admissible or not) which purportedly shows USPS policy would not make that information available "on-line" this long after the mailing. Another claimed deficiency appears to be based upon a misreading of the statute, as defendants claim that the notice to cure the default given in the notices did give them 90 days to bring their account current. RPAPL § 1304's reference to "ninety days" is not to cure the default, but to the requirement that a lawsuit cannot be filed until ninety days after the mailing of the notices. Having now had two opportunities to raise defects in the notices and their mailing, any other claimed defects are waived by defendants.
Defendants also make a number of meritless claims as to the insufficiency of the affidavit of plaintiff's vice president to prove the mailing of the notices, but their claim that the affidavit does not provide details of how the WALZ system works has merit. Although properly admitted business records may be used to establish mailings, the records alone are insufficient if plaintiff does not establish the mailing entities practices and procedures to ensure proper mailing. Here, all plaintiff's affiant says is that the WALZ system records, incorporated into plaintiff's records, establishes the mailing. There is no explanation as to how that system works to ensure proper mailings. Although the affiant refers to the Walz system records being annexed, she makes no other reference to them to explain what they mean. A review of these records raise some issues that need explanation for the court.
Although plaintiff and its affiant claim the notices were mailed by both first class mail and certified mail on April 15, 2015, a review of the WALZ system "tracking results" indicates something different. The entries on both documents indicate that for "4/15/2015... Walz Event- Imported Client Import File...." The next two entries for each notice indicate: "4/16/2015... Walz Event - Printed; 4/16/2015 ... Walz Event MailedWalz Mailbook Batch # 711886 (for first class mail) and # 711913 (for certified mail)." Among the information contained in the upper left corner of each document is the statement "Mailed By: Walz Facility." It is clear that the WALZ system relied upon by plaintiff was not an internal system, but in fact an "external system." The "system" was to send information to Walz ("Walz Event-Imported Client Import File") who would prepare and mail for plaintiff the notices from the Walz' facility, and then notify plaintiff when it was done, providing plaintiff with electronic proof of that fact, as well as tracking of the mailings. The court is familiar with the system from testimony at other trials before it where the procedures have been established and mailing of the notices proven; the affidavit relied upon here does not provide a description of plaintiff's practice and procedure for mailing sufficient for this court.
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 & Presby. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006] ; Citibank, N.A. v. Wood , 150 AD3d 813 [2d Dept 2017] ; Citimortgage Inc. v. Banks 155 AD3d 936 [2d Dept 2017] ). Due proof of the mailing of the notice is established by submission of an affidavit of service (see Emigrant Mortgage Co., Inc. v. Persad, 117 AD3d 676 [2d Dept 2014] ; Bank of NY Mellon v. Aquino , 131 AD3d 1186 [2d Dept 2015] ; 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] ; Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679 [2d Dept 2001] ); U.S. Bank, N.A. v. Sims , 162 AD3d 825 [2d Dept 2018] ; Deutsche Bank Natl. Trust Co. v. Heitner , 165 AD3d 1038 [2d Dept 2018] ).
Even as here, where an affiant establishes her ability to testify as to business records of plaintiff pursuant to CPLR 4518, if she merely states a review of the records establishes the notices were mailed by both regular and certified mail on a certain date, and provides copies of those records, that testimony and evidence is insufficient to establish the mailing required by RPAPL § 1304 (see JPMorgan Chase Bank, N.A. v. Kutch, 142 AD3d 536 [2d Dept 2016] ; Cenlar FSB v. Censor , 139 AD3d 781 [2d Dept 2016] ; US Bank, NA v. Henderson , 163 AD3d 601[ 2d Dept 2018] ). An affiant must show her familiarity with office practices and procedures to establish office practices and procedures to insure proper addressing and mailing; here the affiant failed to do so and the mailings were not established (see CitiMortgage, Inc v. Pappas, 147 AD3d 900 [2d Dept 2017] ; US Bank v. Henry, 157 AD3d 839 [2d Dept 2018] ; Bank of America, NA v. Wheatley , 158 AD3d 736 [2d Dept 2018] ). Although internal tracking records of plaintiff have been held sufficient to establish mailing, that is true only when the information is supplied by an affiant able to testify as to sender's business records, in this case Walz, pursuant to CPLR 4518 (a), something the affidavit here has not established (see One West Bank, FSB v. Simpson, 148 AD3d 920 [2d Dept 2017] ; Citimortgage, Inc. v. Wallach , 163 AD3d 520 [2d Dept 2018] ).
The court expects that the difference between plaintiff's claim that the mailings occurred on April 15, 2015 as opposed to the apparent "proof" offered by the Walz records that show they were mailed on April 16, 2015 will be explained by competent testimony at the limited issue trial which must now follow. As the filing with DFS required by RPAPL § 1306, and attached as an exhibit to the affidavit, also shows the notices mailed on April 15, 2015, the court assumes that an error was made by plaintiff confusing the date on the notices and the date the information was sent to Walz for mailing, with the date the notices were actually mailed. CPLR 2001 allows a court, at any stage, to disregard a party's mistake, omission, defect or irregularity if a substantial right of a party is not prejudiced (see U.S. Bank, N.A. v. Eaddy , 109 AD3d 908 [2d Dept 2013] ; Deutsche Bank National Trust Company v. Lawson , 134 AD3d 760 [2d Dept 2015] ). This court has already found, under similar circumstances, that an error of one day from the date of actual mailing in the report of mailing to DFS was an error that could be disregarded pursuant to CPLR 2001 (see Castle Peak 2012-1 Loan Trust Mortg. Backed Notes, Series 2012-1 v. Connor , 2018 NY Slip Op 31131 [U] [Sup Ct, Suffolk Co., 2018]; Bank of New York Mellon v. Dougherty, Index # 24750-2011 [Sup Ct., Suffolk Co., January 14, 2019] ).
LIMITED ISSUE TRIAL
As a note of issue has been filed and parties have had the opportunity to engage in post note of issue summary judgment motions, the court will entertain no further motions for summary judgment or other relief. This case will proceed to trial on the issue of proof of mailing of the RPAPL § 1304 notices.
The court schedules the single issue trial for Monday, March 18, 2019 at 9:30 AM in this part. The parties are expected to be ready to proceed with the trial on that date.
Any request for adjournment must be made in writing by facsimile to the court at least two court business days prior to the scheduled trial date on consent or notice to opposing counsel. Any adjournments of the trial will only be granted, in the discretion of the court, upon good cause shown.
This constitutes the Order and decision of the Court.