Wells Fargo Bank, N.A. v. Trupia

• Decision Date: 17 May 2017
• Parties: WELLS FARGO BANK, N.A., etc., respondent, v. Maria TRUPIA, appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1049

55 N.Y.S.3d 134

WELLS FARGO BANK, N.A., etc., respondent,

v.Maria TRUPIA, appellant.

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

May 17, 2017.

Zinker & Herzberg, LLP, Hauppauge, NY (Jeffrey Herzberg of counsel), for appellant.

Woods Oviatt Gilman LLP, Rochester, NY (Frances M. Kabat and Richard Mullen of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, HECTOR D. LaSALLE, and FRANCESCA E. CONNOLLY, JJ.

In an action to foreclose a mortgage, the defendant appeals, as limited by her brief, from (1) stated portions of an order of the Supreme Court, Suffolk County (Whelan, J.), dated April 27, 2015, and (2) so much of an order of the same court, also dated April 27, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike her answer, and for an order of reference, and appointed a referee to compute the amount due on the mortgage loan.

ORDERED that the appeal from the first order dated April 27, 2015, is dismissed, as the portions of the first order appealed from were superseded by the second order dated April 27, 2015; and it is further,

ORDERED that the second order dated April 27, 2015, is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the defendant's answer, and for an order of reference are denied, and so much of the first order dated April 27, 2015, as also granted those branches of the plaintiff's motion is vacated; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The plaintiff commenced this action against the defendant to foreclose a mortgage on residential property located in Mattituck. The plaintiff alleged, among other things, that the defendant defaulted on her mortgage obligation, and that, upon information and belief, it complied with RPAPL 1304. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint. In opposition, the defendant asserted that the plaintiff failed to properly serve the required 90–day notice in accordance with RPAPL 1304. In an order dated April 27, 2015, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint, to strike her answer, and for an order of reference. In another order also dated April 27, 2015, the court granted the plaintiff's motion and appointed a referee to compute the amount due on the mortgage loan. We reverse insofar as appealed from.

"[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 CitiMortgage, Inc. v. Pappas, 147 A.D.3d 900, 47 N.Y.S.3d 415 ; Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 910, 961 N.Y.S.2d 200 ). 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, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by submission of proof of mailing by the post office (see ...