U.S. Bank Nat'l Ass'n v. Hammer

• Decision Date: 10 March 2021
• Docket Number: Index No. 65859/15,2018-05130
• Citation: 192 A.D.3d 846,143 N.Y.S.3d 695
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Barbara HAMMER, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 846

143 N.Y.S.3d 695

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Barbara HAMMER, appellant, et al., defendants.

2018-05130

Index No. 65859/15

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

Argued - January 4, 2021

March 10, 2021

Law Offices of Mark J. Friedman, P.C. (Thomas J. Frank and Young Law Group, PLLC, Bohemia, N.Y. [Ivan E. Young and Justin F. Pane], of counsel), for appellant.

RAS Boriskin, LLC, Westbury, N.Y. (Joseph F. Battista of counsel), for respondent.

MARK C. DILLON, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Barbara Hammer appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Westchester County (Lewis J. Lubell, J.), dated October 4, 2018. The order and judgment of foreclosure and sale, upon an order of the same court dated March 27, 2018, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Barbara Hammer, to strike that defendant's answer, and for an order of reference, and upon an order of the same court, also dated March 27, 2018, among other things, referring the matter to a referee to compute the amount due to the plaintiff, inter alia, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, 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, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Barbara Hammer, to strike that defendant's answer, and for an order of reference are denied, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, and the orders dated March 27, 2018, are modified accordingly.

In September 2004, the defendant Barbara Hammer (hereinafter the defendant) executed a note in the principal sum of $1,000,000 in favor of Ideal Mortgage Bankers, Ltd. (hereinafter Ideal). The note was secured by a mortgage encumbering certain real property located in Rye. In 2005, Ideal assigned the mortgage to Option One Mortgage Corporation (hereinafter Option One). In April 2009, the defendant entered into a loan modification agreement with Option One's successor in interest, American Home Mortgage Servicing, Inc. (hereinafter AHMS), which, inter alia, modified the unpaid principal balance on the note to $1,007,706.08. The defendant allegedly defaulted by failing to make the monthly payment due on July 1, 2011, and all subsequent payments thereafter. Subsequently, AHMS assigned the mortgage to LaSalle Bank National Association, as trustee for the Structured Asset Investment Loan Trust, 2004–11 (hereinafter LaSalle Bank). In September 2015, the plaintiff, U.S. Bank National Association (hereinafter U.S. Bank), as successor in interest to LaSalle Bank, commenced this action to foreclose the mortgage, alleging, among other things, that the defendant defaulted under the terms of the note and mortgage, and that it had complied with RPAPL 1304. The defendant interposed an answer denying the allegation in the complaint regarding compliance with RPAPL 1304 and asserting as an affirmative defense, among others, noncompliance with that statute.

In October 2017, U.S. Bank moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. In relevant part, U.S. Bank maintained that it had complied with the notice requirements of RPAPL 1304, and submitted an affidavit from Catherine Ubinas, a contract management coordinator employed by Ocwen Loan Servicing, LLC (hereinafter Ocwen), U.S. Bank's loan servicer, along with copies of an envelope addressed to the defendant bearing a certified mail 20–digit barcode and an envelope bearing a first-class mail postage stamp, and copies of the RPAPL 1304 notices sent to the defendant dated October 2, 2014. The defendant opposed the motion, arguing, among other things, that U.S. Bank's submissions failed to establish, prima facie, its strict compliance with RPAPL 1304. Further, the defendant requested that the Supreme Court search the record and award her summary judgment dismissing the complaint insofar as asserted against her. In reply, U.S. Bank argued that it had not been required to send the defendant a RPAPL 1304 notice because the defendant previously had applied for a loan modification and, in any event, it had complied with the requirements of RPAPL 1304. US Bank submitted, among other things, a signed certified mail return receipt.

In an order dated March 27, 2018, the Supreme Court granted U.S. Bank's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. In a second order, also dated March 27, 2018, the court granted the same relief and appointed a referee to compute the amount due to the plaintiff. Thereafter, in an order and judgment of foreclosure and sale dated October 4, 2018, upon the orders dated March 27, 2018, the court, among other things, confirmed the referee's report and directed the sale of the property. The defendant appeals.

"[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 ; see Wells Fargo Bank, N.A. v. Trupia, 150 A.D.3d 1049, 1050, 55 N.Y.S.3d 134 ). "The statute requires that such notice ... be sent by registered or certified mail, and also by first-class mail, to...