CIT Bank N.A. v. Schiffman, Docket No. 18-3287

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Katzmann, Circuit Judge
• Citation: 999 F.3d 113
• Parties: CIT BANK N.A., Plaintiff-Counter-Defendant-Appellee, v. Pamela SCHIFFMAN, Jerry Schiffman, Defendants-Counter-Claimants-Appellants, JP Morgan Chase Bank, N.A., New York City Parking Violations Bureau, Defendants.
• Docket Number: August Term, 2019,Docket No. 18-3287
• Decision Date: 28 May 2021

999 F.3d 113

CIT BANK N.A., Plaintiff-Counter-Defendant-Appellee,
v.
Pamela SCHIFFMAN, Jerry Schiffman, Defendants-Counter-Claimants-Appellants,

JP Morgan Chase Bank, N.A., New York City Parking Violations Bureau, Defendants.

Docket No. 18-3287
August Term, 2019

United States Court of Appeals, Second Circuit.

Submitted: January 13, 2020
Decided: May 28, 2021

Stephen J. Vargas, Gross Polowy, LLC, Westbury, NY, for Plaintiff-Counter-Defendant-Appellee.

Samuel Katz, Brooklyn, NY, for Defendants-Counter-Claimants-Appellants.

Before: Katzmann and Lynch, Circuit Judges, and Kaplan, District Judge.^*

Katzmann, Circuit Judge:

CIT Bank N.A. brought this action against Pamela and Jerry Schiffman to foreclose on a property in Brooklyn, New York. The district court (Irizarry, J. ) granted summary judgment to CIT, and the Schiffmans appealed, arguing that CIT had failed to prove compliance with two provisions of the New York Real Property Actions and Proceedings Law ("RPAPL").

In an earlier opinion, we determined that the Schiffmans’ arguments turned on undecided questions of state law. CIT Bank N.A. v. Schiffman , 948 F.3d 529 (2d Cir. 2020). We accordingly certified two questions to the New York Court of Appeals, pursuant to 22 N.Y.C.R.R. § 500.27(a) and Second Circuit Local Rule 27.2(a). See 948 F.3d at 538. The New York Court of Appeals granted our request for certification, see 34 N.Y.3d 1137, 119 N.Y.S.3d 419, 142 N.E.3d 102 (2020), and provided helpful answers to our questions, see CIT Bank N.A. v. Schiffman , No. 11, 2021 WL 1177940 (N.Y. Mar. 30, 2021). With the benefit of the New York Court of Appeals’ invaluable guidance, which we are bound to follow, we now find that CIT has adequately proven compliance with the requirements of the RPAPL. We accordingly affirm the district court's grant of summary judgment to CIT.

BACKGROUND

This appeal arises from a foreclosure action brought by plaintiff-counter-defendant-appellee CIT Bank N.A. against defendants-counter-claimants-appellants Pamela and Jerry Schiffman.¹ In 2008, Pamela Schiffman took out a loan and executed a note with IndyMac Bank,

999 F.3d 116

F.S.B., securing the note by a mortgage given by her and her husband, Jerry, on their home in Brooklyn. The mortgage was subsequently assigned to OneWest Bank, F.S.B., which later became known as CIT Bank N.A. The Schiffmans ceased making mortgage payments on and after December 1, 2014, and CIT initiated a foreclosure action on October 17, 2016 in the United States District Court for the Eastern District of New York. On February 28, 2018, CIT moved for summary judgment, and the district court (Irizarry, J. ) granted the motion after adopting the Report and Recommendation of the magistrate judge (Levy, M.J. ).

The Schiffmans challenged the district court's decision on appeal, arguing, first, that CIT failed to prove compliance with the pre-foreclosure notice requirements of RPAPL § 1304 and, second, that CIT failed to prove compliance with the pre-foreclosure filing requirements of RPAPL § 1306. As to RPAPL § 1304, the Schiffmans argued that CIT did not adequately establish that it had served them with the notice that § 1304 requires a lender to provide to a home loan borrower at least ninety days before commencing a foreclosure action. See N.Y. Real Prop. Acts. Law § 1304(1)–(2). "Proper service of [an] 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." Deutsche Bank Nat'l Tr. Co. v. Spanos , 102 A.D.3d 909, 961 N.Y.S.2d 200, 202 (2013). A lender may create a rebuttable presumption that it complied with § 1304 by submitting "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 , 98 N.Y.S.3d 273, 277, 172 A.D.3d 17 (2019).² But the purported recipient of a notice may rebut the presumption that the notice was mailed (as the New York Court of Appeals has held, albeit in a different context) by both denying receipt and "showing that [the] routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed." Nassau Ins. Co. v. Murray , 46 N.Y.2d 828, 414 N.Y.S.2d 117, 386 N.E.2d 1085, 1086 (N.Y. 1978).

In support of its motion for summary judgment, CIT submitted an affidavit from one of its employees, Assistant Secretary Rachel Hook. Hook's affidavit explains that CIT employees follow a standard office procedure "used to create, mail and store data regarding the 90 day pre-foreclosure notice" required by RPAPL § 1304, and her affidavit certifies that she is personally familiar with this procedure. Joint App'x 18. As relevant to this appeal, Hook stated that CIT's standard practice is to create the § 1304 notice "upon default" by the borrower. Joint App'x 19. She also affirmed that CIT employees followed this procedure in creating and mailing the required § 1304 notices to the Schiffmans. But the Schiffmans denied receipt of any such notices. And they further countered that CIT's own evidence demonstrated that it had not followed its standard practice in this instance: Along with the Hook affidavit, CIT submitted copies of § 1304 notices that were addressed to each of the Schiffmans and marked as having been sent via first-class and certified mail; but these notices were dated November 18, 2015, indicating that they were created not

999 F.3d 117

"upon default," but, rather,...