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

• Decision Date: 19 December 2018
• Docket Number: Index No. 11316/14,2016–04246
• Citation: 90 N.Y.S.3d 227,167 A.D.3d 965
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., Respondent, v. Dock COPE, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 965

90 N.Y.S.3d 227

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

v.Dock COPE, Appellant, et al., Defendants.

2016–04246

Index No. 11316/14

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

Argued—June 22, 2018

December 19, 2018

Joseph A. Altman, P.C., Bronx, NY, for appellant.

Eckert Seamans Cherin & Mellot, LLC, White Plains, N.Y. (Morgan R. McCord of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Dock Cope appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered February 19, 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 the defendant Dock Cope, to strike that defendant's answer, and for an order of reference, and denied the cross motion of the defendant Dock Cope for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the appeal from so much of the order as denied the cross motion of the defendant Dock Cope for summary judgment dismissing the complaint insofar as asserted against him is dismissed, without costs or disbursements; and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, without costs or disbursements, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Dock Cope, to strike that defendant's answer, and for an order of reference are denied.

In 1988, the defendant Dock Cope (hereinafter the defendant) borrowed the sum of $180,000 from Home Savings of America, F.A. (hereinafter Home Savings), and the loan was secured by a mortgage on real property located in Westbury. By assignment dated September 19, 2003, Washington Mutual Bank, F.A. (hereinafter WAMU), successor by merger to Home Savings, assigned the mortgage "together with the Note" to the plaintiff.

In 2014, the plaintiff commenced this foreclosure action, alleging that the defendant had defaulted under the terms of the note and mortgage. The plaintiff annexed to the complaint an affidavit of lost note of Cynthia A. Riley, assistant vice president of WAMU, dated September 16, 2003, and a photocopy of the note. In her affidavit, Riley did not offer any details as to the circumstances under which the note was purportedly lost, but she averred that she conducted a diligent search of "all of our files," consisting of "a thorough audit of the customary filing locations, inclusive of the original credit file." Further, Riley stated that "[a]ll applicable departments were required to conduct an audit of their areas to locate said [note]." Riley concluded:

"Said due and diligent search failed to locate said promissory note, and said promissory note is deemed lost."

In his answer, the defendant asserted as affirmative defenses, inter alia, that the plaintiff lacked standing, the lost note affidavit was deficient, the plaintiff failed to comply with the notice of default provision of the mortgage, and the plaintiff failed to comply with the statutory requirements to commence a foreclosure action.

The plaintiff 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, and the defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court granted the plaintiff's motion and denied the defendant's 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’ " ( Hudson City Sav. Bank v. Genuth, 148 A.D.3d 687, 688–689, 48 N.Y.S.3d 706, quoting Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 ). Pursuant to UCC 3–804, the owner of a lost note may maintain an action "upon due proof of [1] his [or her] ownership, [2] the facts which prevent his [or her] production of the instrument and [3] its terms" ( UCC 3–804 ). The party seeking to enforce a lost instrument is required to "account for its absence" ( UCC 3–804, Official Comment).

Here, although the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note's terms, the affidavit of lost note submitted in support of its motion failed establish the facts that prevent the production of the original note (see UCC 3–804 ; Deutsche Bank Natl. Trust Co. v. Anderson, 161 A.D.3d 1043, 1044–1045, 79 N.Y.S.3d 42 ; U.S. Bank N.A. v. Richards, 155 A.D.3d 522, 524, 65 N.Y.S.3d 178 ; Marrazzo v. Piccolo, 163 A.D.2d 369, 558 N.Y.S.2d 103 ; see also New York Community Bank v. Jennings, 2015 N.Y. Slip Op 31591[U], 2015 WL 5062168, *4–5 [Sup Ct, Queens County] ). Additionally, we note that Riley's out-of-state affidavit lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff's motion (see Bank of N.Y. Mellon v. Vytalingam, 144 A.D.3d 1070, 1071, 42 N.Y.S.3d 274 ).

Further, the evidence submitted in support of the plaintiff's motion failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304. Proper service of the RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action (see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 103, 923 N.Y.S.2d 609 ). The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office demonstrating that it properly served the defendant pursuant to the terms of the statute (see U.S. Bank N.A. v. Henry, 157 A.D.3d 839, 69 N.Y.S.3d 656 ; Investors Sav. Bank v. Salas, 152 A.D.3d 752, 58 N.Y.S.3d 600 ; Citibank, N.A. v. Wood, 150 A.D.3d 813, 55 N.Y.S.3d 109 ; cf. Citimortgage, Inc. v. Banks, 155 A.D.3d 936, 64 N.Y.S.3d 121 ). Contrary to the plaintiff's contention, the affidavit of a representative of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the representative did...