Nationstar Mortg., LLC v. Matles

• Citation: 185 A.D.3d 703,127 N.Y.S.3d 135
• Decision Date: 08 July 2020
• Docket Number: Index No. 2074/11,2017-10302,2017-10301
• Parties: NATIONSTAR MORTGAGE, LLC, Respondent, v. Stella M. MATLES, etc., Appellant, et al., Defendants.
• Court: New York Supreme Court Appellate Division

185 A.D.3d 703

127 N.Y.S.3d 135

NATIONSTAR MORTGAGE, LLC, Respondent,

v.Stella M. MATLES, etc., Appellant, et al., Defendants.

2017-10301

2017-10302

Index No. 2074/11

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

Submitted—February 6, 2020

July 8, 2020

Petroff Amshen LLP, Brooklyn, N.Y. (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant.

McCalla Raymer Leibert Pierce LLC, New York, N.Y. (Harold L. Kofman of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Stella M. Matles appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered July 31, 2017, and (2) an order of the same court entered August 1, 2017. The order entered July 31, 2017, insofar as appealed from, upon renewal, in effect, vacated a prior determination in an order of the same court entered November 14, 2016, denying those branches of the motion of Aurora Loan Services, LLC, the plaintiff's predecessor in interest, which were for summary judgment on the complaint insofar as asserted against that defendant, to strike her answer, and for an order of reference, and thereupon granted those branches of that motion, and denied that defendant's cross motion, in effect, for summary judgment dismissing the complaint insofar as asserted against her based on the failure of Aurora Loan Services, LLC, to comply with the notice requirement of RPAPL 1304 and 1306. The order entered August 1, 2017, insofar as appealed from, upon renewal, in effect, vacated the prior determination in the order entered November 14, 2016, denying those branches of the motion of Aurora Loan Services, LLC, the plaintiff's predecessor in interest, which were for summary judgment on the complaint insofar as asserted against the defendant Stella M Matles, to strike her answer, and for an order of reference, and thereupon granted those branches of that motion, denied that defendant's cross motion, in effect, for summary judgment dismissing the complaint insofar as asserted against her based on the failure of Aurora Loan Services, LLC, to comply with the notice requirement of RPAPL 1304 and 1306, and appointed a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that the appeal from the order entered July 31, 2017, is dismissed, without costs or disbursements, as the portions of the order appealed from were superseded by the order entered August 1, 2017; and it is further,

ORDERED that the order entered August 1, 2017, is modified, on the law, without costs or disbursements, (1) by deleting the provision thereof, upon renewal, in effect, vacating the prior determination in the order entered November 14, 2016, denying those branches of the motion of Aurora Loan Services, LLC, which were for summary judgment on the complaint insofar as asserted against the defendant Stella M. Matles, to strike her answer, and for an order of reference, and thereupon granting those branches of that motion, and substituting therefor a provision, upon renewal, adhering to the prior determination, and (2) by deleting the provision thereof appointing a referee to ascertain and compute the amount due to the plaintiff; as so modified, the order entered August 1, 2017, is affirmed insofar as appealed from, and the order entered July 31, 2017, is modified accordingly.

In February 2011, Aurora Loan Services, LLC (hereinafter Aurora), commenced this action against the defendant Stella M. Matles (hereinafter the defendant), among others, to foreclose a consolidated mortgage on residential property in Nassau County. In an answer, the defendant, inter alia, generally denied the allegations in the complaint and asserted lack of standing as an affirmative defense. By assignment of mortgage dated April 18, 2016, Aurora assigned the mortgage to its loan servicer, Nationstar Mortgage LLC (hereinafter Nationstar). In June 2016, Aurora moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The defendant opposed Aurora's motion, and cross-moved, in effect, for summary judgment dismissing the complaint insofar as asserted against her based on Aurora's failure to comply with the notice requirements of RPAPL 1304 and 1306. In an order entered November 14, 2016, the Supreme Court denied the motion and the cross motion, with leave to renew. The court determined, inter alia, that Aurora failed to submit proof of compliance with RPAPL 1306.

Aurora subsequently moved for leave to renew its prior motion, inter alia, for summary judgment, and, in support thereof, submitted a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. The defendant opposed the motion and cross-moved, in effect, for summary judgment dismissing the complaint insofar as asserted against her based on Aurora's failure to comply with the notice requirements of RPAPL1304 and 1306. By order entered July 31, 2017, the Supreme Court, inter alia, upon renewal, granted those branches of Aurora's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference, and denied the defendant's cross motion. The court concluded that Aurora established, prima facie, its entitlement to judgment as a matter of law "by demonstrating possession of the note, compliance with RPAPL 1304 and filing of notices pursuant to [RPAPL] 1306 ... and defendant's default," and that, in opposition, the defendant failed to raise a triable issue of fact. Thereafter, in an order entered August 1, 2017, the court, inter alia, appointed a referee to ascertain and compute the amount due, and amended the caption to substitute Nationstar as the plaintiff in place of Aurora. The defendant appeals from both orders.

"In a residential foreclosure action, a plaintiff moving for summary judgment must tender sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" ( HSBC Bank USA, N.A. v. Bermudez , 175 A.D.3d 667, 669, 107 N.Y.S.3d 138 [internal quotation marks omitted] ). 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." "The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower" ( Citibank, N.A. v. Conti–Scheurer , 172 A.D.3d 17, 20, 98 N.Y.S.3d 273 ; see RPAPL 1304[2] ). Strict compliance with RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action (see Citibank, N.A. v. Conti–Scheurer , 172 A.D.3d at 20, 98 N.Y.S.3d 273 ; Citimortgage, Inc. v. Banks , 155 A.D.3d 936, 936–937, 64 N.Y.S.3d 121 ; HSBC Bank USA, N.A. v. Ozcan , 154 A.D.3d 822, 825–826, 64 N.Y.S.3d 38 ; Aurora Loan Servs., LLC v. Weisblum , 85 A.D.3d 95, 103, 923 N.Y.S.2d 609 ). "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, the Legislature implicitly provided the means...