Nationstar Mortg., LLC v. Durane-Bolivard, 2018–05250
| Court | New York Supreme Court Appellate Division |
| Citation | 175 A.D.3d 1308,109 N.Y.S.3d 99 |
| Docket Number | 2018–05250,Index No. 6017/14 |
| Parties | NATIONSTAR MORTGAGE, LLC, Respondent, v. Marie DURANE–BOLIVARD, Appellant, et al., Defendants. |
| Decision Date | 11 September 2019 |
175 A.D.3d 1308
109 N.Y.S.3d 99
NATIONSTAR MORTGAGE, LLC, Respondent,
v.
Marie DURANE–BOLIVARD, Appellant, et al., Defendants.
2018–05250
Index No. 6017/14
Supreme Court, Appellate Division, Second Department, New York.
Submitted—April 22, 2019
September 11, 2019
Holly C. Meyer, Bohemia, NY, for appellant.
Davidson Fink LLP (McGlinchey Stafford, New York, N.Y. [Brian S. McGrath and Mitra Paul Singh ], of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Marie Durane–Bolivard appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered February 28, 2018. The order and judgment of foreclosure and sale, upon an order of the same court entered September 13, 2016, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant and dismissing her first, third, and fourth affirmative defenses, and to appoint a referee to compute the amount due to the plaintiff, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, the referee's report is rejected, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
The plaintiff commenced this action against the defendant Marie Durane–Bolivard (hereinafter the defendant), among others, to foreclose a mortgage. The defendant interposed an answer in which she asserted various affirmative defenses, including lack of standing, failure to comply with RPAPL 1304, and failure to comply with a condition precedent set forth in the subject mortgage requiring that the plaintiff tender the defendant a notice of default prior to accelerating the mortgage. In an order entered September 13, 2016, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and dismissing her first, third, and fourth affirmative defenses, and to appoint a referee to compute the amount due to the plaintiff. In an order and judgment of foreclosure and sale entered February 28, 2018, the
court granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals from the order and judgment of foreclosure and sale. The appeal from the order and judgment of foreclosure and sale brings up for review the order entered September 13, 2016 (see CPLR 5501[a][1] ; Nationstar Mortgage, LLC v. Durane–Bolivard, 175 A.D.3d 1307, 105 N.Y.S.3d 916 [Appellate Division Docket No. 2017–00437; decided herewith] ).
"[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 ). The statute requires 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] ). "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,...
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