JPMorgan Chase Bank, Nat'l Ass'n v. Skluth
| Decision Date | 06 November 2019 |
| Docket Number | Index No. 69189/15,2018–10818,2018–10817 |
| Parties | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent, v. Mark K. SKLUTH, et al., Appellants, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
177 A.D.3d 592
111 N.Y.S.3d 629
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent,
v.
Mark K. SKLUTH, et al., Appellants, et al., Defendants.
2018–10817
2018–10818
Index No. 69189/15
Supreme Court, Appellate Division, Second Department, New York.
Argued—June 10, 2019
November 6, 2019
Matthew T. Worner, White Plains, NY, for appellants.
Parker Ibrahim & Berg LLP, New York, N.Y. (Charles W. Miller III, Karena J. Straub, and Scott Parker of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Mark K. Skluth and Lauren K. Skluth appeal from two orders of the Supreme Court, Westchester County (Sam D. Walker, J.), both dated August 13, 2018. The first 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 Mark K. Skluth and Lauren K. Skluth, to strike those defendants' answer and counterclaims, and for an order of reference, and denied those defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them. The second order, inter alia, referred the matter to a referee to ascertain and compute the amount due on the mortgage loan.
ORDERED that the first order is affirmed insofar as appealed from; and it is further,
ORDERED that the second order is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action against the defendants Mark K. Skluth and Lauren K. Skluth (hereinafter together the Skluth defendants), among others, to foreclose a mortgage encumbering certain property in Goldens Bridge. The Skluth defendants served a verified answer with counterclaims and various affirmative defenses, including the plaintiff's failure to comply with RPAPL 1304.
Thereafter, the plaintiff moved, inter alia, for summary judgment
on the complaint insofar as asserted against the Skluth defendants, to strike their answer and counterclaims, and for an order of reference. In support of the motion, the plaintiff submitted, among other things, an affidavit of mailing of its vice president, Mary Owens. Based upon her review of the plaintiff's business records relating to the subject loan, and her personal knowledge of how such records are kept and maintained, Owens averred that 90–day preforeclosure notices pursuant to RPAPL 1304 were sent on June 25, 2015, by regular first-class and certified mail, to the Skluth defendants at the mortgaged premises. Owens additionally attested to the plaintiff's regular practice for imaging such records and for obtaining and imaging proof of mailing from the United States Postal Service (hereinafter USPS) at or near the time of mailing, and annexed copies of the subject notices bearing USPS certified mail barcodes and numbers
as well as a copy of first class bulk mail receipts and...
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