Nationstar Mortg., LLC v. Grunwald

• Decision Date: 30 March 2022
• Docket Number: 2019–03051,Index No. 504132/14
• Citation: 203 A.D.3d 1170,166 N.Y.S.3d 237
• Parties: NATIONSTAR MORTGAGE, LLC, appellant, v. Jonathan GRUNWALD, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1170

166 N.Y.S.3d 237

NATIONSTAR MORTGAGE, LLC, appellant,

v.Jonathan GRUNWALD, respondent, et al., defendants.

2019–03051

Index No. 504132/14

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

Submitted—March 1, 2022

March 30, 2022

Fein, Such & Crane, LLP (D.J. & J.A. Cirando, PLLC, Syracuse, NY [John A. Cirando and Rebecca L. Konst], of counsel), for appellant.

Law Office of Samuel Katz, PLLC, Brooklyn, NY (Joseph J. Schwartz of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J), dated January 29, 2019. The order denied the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant Jonathan Grunwald, to strike his answer, for an order of reference, for leave to amend the caption to substitute U.S. Bank Trust, N.A., as trustee for LSF9 Master Participation Trust, as the plaintiff, and to substitute Chaya Grunwald and Dina Grunwald for the "Doe" defendants, and for leave to enter a default judgment against all nonappearing defendants.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff's motion which was to strike the affirmative defense of the defendant Jonathan Grunwald alleging lack of standing, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof denying that branch of the plaintiff's motion which was for leave to amend the caption to substitute U.S. Bank Trust, N.A., as trustee for LSF9 Master Participation Trust, as the plaintiff, and substituting therefor a provision granting that branch of the plaintiff's motion; as so modified, the order is affirmed, without costs or disbursements.

On September 8, 2008, Jonathan Grunwald (hereinafter the defendant) executed a note in the sum of $400,000 in favor of MetLife Home Loans (hereinafter MetLife), secured by a mortgage on residential property in Brooklyn. On January 8, 2014, MetLife assigned the mortgage to Nationstar Mortgage, LLC (hereinafter the plaintiff). On or about March 18, 2014, the plaintiff commenced this action to foreclose the mortgage against, among others, the defendant, alleging that he had defaulted on the subject mortgage loan by failing to make the monthly installment payment due July 1, 2011, and all payments due thereafter. The defendant interposed an answer asserting various affirmative defenses, including the plaintiff's lack of standing and failure to comply with RPAPL 1304. On August 19, 2016, the plaintiff assigned the mortgage "with all interest secured thereby, all liens, and any rights due or to become due thereon" to U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust.

On June 29, 2018, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, for an order of reference, and for leave to amend the caption to substitute U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust (hereinafter U.S. Bank), as the plaintiff, and to substitute Chaya Grunwald and Dina Grunwald for the "Doe" defendants. In an order dated January 29, 2019, the Supreme Court denied the plaintiff's motion, finding that the plaintiff failed to proffer proof of actual mailing of the RPAPL 1304 notices or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. The plaintiff appeals.

As a threshold matter, the plaintiff established that it had standing to commence this action, as it attached a copy of the note, endorsed in blank, to the summons and complaint at the time the action was commenced (see Bank of N.Y. v. Pigott, 200 A.D.3d 633, 635, 159 N.Y.S.3d 446 ; Nationstar Mtge., LLC v. Shivers, 179 A.D.3d 931, 933, 114 N.Y.S.3d 242 ). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to strike the defendant's affirmative defense alleging lack of standing.

However, contrary to the plaintiff's contention, it failed to establish, prima facie, its strict compliance with the requirements of RPAPL 1304. Pursuant to RPAPL 1304(1), "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...