Bank of N.Y. Mellon v. Porfert

• Decision Date: 28 October 2020
• Docket Number: 2018–01447,Index No. 60242/14
• Citation: 134 N.Y.S.3d 57,187 A.D.3d 1110
• Parties: BANK OF NEW YORK MELLON, etc., respondent, v. Kenneth PORFERT, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1110

134 N.Y.S.3d 57

BANK OF NEW YORK MELLON, etc., respondent,

v.Kenneth PORFERT, appellant, et al., defendants.

2018–01447

Index No. 60242/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 17, 2020

October 28, 2020

Jeffrey Herzberg, P.C., Hauppauge, NY, of counsel, for appellant.

Fein, Such & Crane, LLP, Westbury, N.Y. (Michael S. Hanusek of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Kenneth Porfert appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), entered August 23, 2018. The order and judgment of foreclosure and sale, upon an order of the same court dated November 20, 2017, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer, and for an order of reference, and denying that defendant's cross motion pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him, and upon an order of the same court, also dated November 20, 2017, inter alia, referring the matter to a referee to compute the amount due to the plaintiff, among other things, directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, without costs or disbursements, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Kenneth Porfert, to strike that defendant's answer, and for an order of reference are denied, and the orders dated November 20, 2017, are modified accordingly.

On January 14, 2014, the plaintiff commenced this action against, among others, the defendant Kenneth Porfert (hereinafter the defendant) to foreclose a mortgage on certain residential property located in Manorville. The defendant interposed an answer in which he asserted as affirmative defenses, among other things, that the plaintiff lacked standing and failed to comply with RPAPL 1304. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint, to strike the defendant's answer, and for an order of reference. The defendant cross-moved pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him on the ground that a prior action to foreclose the mortgage was pending. In two orders dated November 20, 2017, the Supreme Court granted the plaintiff's motion, denied the defendant's cross motion, and referred the matter to a referee to compute the amount due to the plaintiff. The court then issued an order and judgment of foreclosure and sale, inter alia, directing the sale of the property. The defendant appeals.

The evidence submitted by the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304 or that it had standing to commence the foreclosure action. Therefore, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference.

RPAPL 1304 requires that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer must give notice to the borrower. The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304[2] ). "Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action" ( Citibank, N.A. v. Conti–Scheurer , 172 A.D.3d 17, 20, 98 N.Y.S.3d 273 ; see Citimortgage, Inc. v. Banks , 155 A.D.3d 936, 936–937, 64 N.Y.S.3d 121 ), "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 ). "By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which 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" ( Citibank, N.A. v. Conti–Scheurer , 172 A.D.3d at 20–21, 98 N.Y.S.3d 273 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 508–509, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; Bank of Am., N.A. v. Bittle , 168 A.D.3d 656, 658, 91 N.Y.S.3d 234 ).

Here, the plaintiff failed to submit an affidavit of mailing or proof of first-class mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304. Instead, the plaintiff relied on an affidavit of Sherry Benight, who was employed as a document control officer for Select Portfolio Servicing, Inc. (hereinafter SPS), which began servicing the subject loan on the plaintiff's behalf on July 15, 2015, as well as copies of the purported notices, dated July 22, 2013. Although one of the notices contained a first-class mail 10–digit barcode, the plaintiff submitted no evidence that the letter was actually sent by first-class mail more than 90 days prior to commencement of the action. In her affidavit, Benight stated that she could confirm that the notice was sent to the defendant on July 22, 2013. However, Benight did not have personal knowledge of the purported mailing. Further, since she did not aver that she was familiar with the mailing practices and procedures of Bank of America, N.A., the entity that purportedly sent the notices, she did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (see Deutsche Bank Natl. Trust Co. v. Dennis, 181 A.D.3d 864, 867, 122 N.Y.S.3d 95 ; U.S. Bank N.A. v. Offley, 170 A.D.3d 1240, 1242, 97 N.Y.S.3d 307 ; U.S. Bank N.A. v. Henderson, 163 A.D.3d 601, 603, 81 N.Y.S.3d 80 ; Bank of Am., N.A. v. Wheatley, 158 A.D.3d 736, 738, 73 N.Y.S.3d 88 ). To the extent that Benight relied upon a screenshot of a TrackRight Transaction Report, she failed to establish how or when the report was created, that it was made in the regular course of business, or that it was created soon after the notices were purportedly mailed to the defendant (see CPLR 4518[a] ; JPMorgan Chase Bank, N.A. v. Skluth, 177 A.D.3d...