Nationstar Mortg., LLC v. Jean-Baptiste, 2017-02057

• Citation: 178 A.D.3d 883,114 N.Y.S.3d 402
• Decision Date: 18 December 2019
• Docket Number: Index No. 13765/13,2017-02057
• Parties: NATIONSTAR MORTGAGE, LLC, Respondent, v. Emile JEAN–BAPTISTE, et al., Defendants, Anthony Jean–Baptiste, Appellant.
• Court: New York Supreme Court Appellate Division

178 A.D.3d 883

114 N.Y.S.3d 402

NATIONSTAR MORTGAGE, LLC, Respondent,

v. Emile JEAN–BAPTISTE, et al., Defendants,Anthony Jean–Baptiste, Appellant.

2017-02057

Index No. 13765/13

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

Submitted—September 27, 2019

December 18, 2019

Harvey Sorid, Uniondale, NY, for appellant.

Ballard Spahr LLP, New York, N.Y. (Adam Hartley of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOHN M. LEVENTHAL, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Anthony Jean–Baptiste appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 3, 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 that defendant, to strike his answer, and for an order of reference, and denied those branches of the cross motion of the defendant Anthony Jean–Baptiste, made jointly with the defendant Margarette Niclasse, which were for leave to amend his answer and for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Jean–Baptiste, to strike his answer, and for an order of reference, and substituting therefor a provision denying those branches of the motion, and (2) by deleting the provision thereof denying that branch of the cross motion of the defendant Anthony Jean–Baptiste, made jointly with the defendant Margarette Niclasse, which was for leave to amend his answer, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On January 25, 2007, the defendants Emile Jean–Baptiste and Margarette Niclasse executed a note in the amount of $376,000 in favor of Fremont Investment & Loan. The note was secured by a mortgage that was subsequently assigned to the plaintiff. On December 24, 2009, the plaintiff entered into a loan modification agreement with Emile Jean–Baptiste and Niclasse. Thereafter, on April 6, 2012, the plaintiff entered into a loan modification agreement with Niclasse and Anthony Jean–Baptiste (hereinafter the defendant).

In November 2013, the plaintiff commenced this action to foreclose the mortgage against the defendant, Emile Jean–Baptiste, and Niclasse, among others. The defendant, Emile Jean–Baptiste, and Niclasse interposed an answer which, inter alia, denied the plaintiff's allegations that the plaintiff had complied with the notice requirements of RPAPL 1304 and the subject mortgage agreement, and asserted the affirmative defense, among others, that the plaintiff lacked standing to bring this action.

The plaintiff subsequently moved, inter alia, for summary judgment on the complaint, to strike the answer of the defendant, Emile Jean–Baptiste, and Niclasse, and for an order of reference. The defendant and Niclasse cross-moved for leave to amend their answer and for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion and denied the cross motion. The defendant appeals.

"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" ( Plaza Equities, LLC v. Lamberti , 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ; see U.S. Bank N.A. v. Sabloff , 153 A.D.3d 879, 880, 60 N.Y.S.3d 343 ). However, where the plaintiff's standing has been placed in issue by a defendant, "the plaintiff must prove its standing in order to be entitled to relief" ( U.S. Bank N.A, v. Sabloff , 153 A.D.3d at 880, 60 N.Y.S.3d 343 ; see Bank of N.Y. Mellon v. Lopes , 158 A.D.3d 662, 663, 71 N.Y.S.3d 147 ). Here, the plaintiff's contention that the defendant waived the defense of the plaintiff's lack of standing is raised for the first time on appeal and is not properly before this Court (see Wachovia Mtge. FSB v. Macwhinnie , 175 A.D.3d 1587, 1590, 108 N.Y.S.3d 183 ).

"A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced" ( Wells Fargo Bank, N.A. v. Gallagher , 137 A.D.3d 898, 899, 28 N.Y.S.3d 84 ; see U.S. Bank, N.A. v. Nathan , 173 A.D.3d 1112, 1114, 104 N.Y.S.3d 144 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( U.S. Bank, N.A. v. Collymore , 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ; see U.S. Bank, N.A. v. Nathan , 173 A.D.3d at 1114, 104 N.Y.S.3d 144 ).

Here, the plaintiff failed to meet its prima facie burden of establishing that it had standing to commence this action. In support of its motion, the plaintiff relied on the affidavit of its Document Execution Specialist, Jerrell Menyweather, who attested that the plaintiff received physical delivery of the original note on July 6, 2007, and was in possession and the holder of the note, prior to commencement of the action (see Wells Fargo Bank, N.A. v. Grosz , 173 A.D.3d 1247, 1248–1249, 103 N.Y.S.3d 535 ; Wells Fargo Bank, N.A. v. Gallagher , 137 A.D.3d at 900, 28 N.Y.S.3d 84 ). While Menyweather attested that his knowledge was based on business records maintained by the plaintiff, he failed to annex the business records that he referred to in his affidavit. Thus, his affidavit constituted inadmissible hearsay and lacked probative value on this issue of the plaintiff's standing (see Bank of N.Y. Mellon v. Gordon , 171 A.D.3d 197, 205–206, 97 N.Y.S.3d 286 ).

" RPAPL 1304(1) 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.’ ‘[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition’ " ( Citimortgage, Inc. v. Borek , 171 A.D.3d 848, 850, 97 N.Y.S.3d 657, quoting HSBC Bank USA, N.A. v. Ozcan , 154 A.D.3d 822, 825–826, 64 N.Y.S.3d 38 ). " RPAPL 1304 requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower" ( Citimortgage, Inc. v. Borek , 171 A.D.3d at 850, 97 N.Y.S.3d 657 ; see RPAPL 1304[2] ).

Here, the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304. Although Menyweather stated in the affidavit that the RPAPL 1304 notices were sent to certain of the defendants via certified and first-class mail, the plaintiff failed to provide any documents to prove that the mailing actually took place. Moreover, "[w]hile mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay," Menyweather "did not make the requisite showing that he was familiar with the plaintiff's mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed" ( Wells Fargo Bank, N.A. v. Lewczuk , 153 A.D.3d 890, 892, 61 N.Y.S.3d 244 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v. Trupia , 150 A.D.3d 1049, 1050–1051, 55 N.Y.S.3d 134 ).

Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on...