CitiMortgage, Inc. v. Banks

• Decision Date: 22 November 2017
• Citation: 155 A.D.3d 936,64 N.Y.S.3d 121
• Parties: CITIMORTGAGE, INC., respondent, v. Michael C. BANKS, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 936

64 N.Y.S.3d 121

CITIMORTGAGE, INC., respondent,

v.Michael C. BANKS, et al., appellants, et al., defendants.

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

Nov. 22, 2017.

John C. Schnaufer, Esq., LLC, Hartsdale, NY, for appellants.

Akerman, LLP, New York, NY (Ashley S. Miller of counsel), for respondent.

RUTH C. BALKIN, J.P., JOSEPH J. MALTESE, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.

Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated January 21, 2016. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Michael C. Banks and Tyra Banks, to strike their answer, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, the defendants Michael C. Banks and Tyra Banks (hereinafter together the defendants) to foreclose a mortgage. In their answer, the defendants asserted several affirmative defenses, including that the plaintiff failed to comply with RPAPL 1304. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. The defendants opposed the motion on the ground that the plaintiff failed to demonstrate its compliance with RPAPL 1304. By order dated January 21, 2016, the Supreme Court, inter alia, granted the plaintiff's motion. The defendants appeal.

RPAPL 1304(1), which applies to residential foreclosure actions, provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." The statute sets forth the requirements for the content of such notice and provides that such 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] ). "[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 ; see Citibank, N.A. v. Wood, 150 A.D.3d 813, 814, 55 N.Y.S.3d 109 ; Flagstar Bank, FSB v. Damaro, 145 A.D.3d 858, 860, 44 N.Y.S.3d 128 ; Flushing Sav. Bank v. Latham, 139 A.D.3d 663, 665, 32 N.Y.S.3d 206 ; Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 910, 961 N.Y.S.2d 200 ).

Here, contrary to the defendants' contentions, the plaintiff established, prima facie, the...