Wells Fargo Bank, N.A. v. Tricario, 2017-01975

• Decision Date: 13 February 2020
• Docket Number: 2017-01975,2017-01977,Index No. 6507/144
• Citation: 119 N.Y.S.3d 139,180 A.D.3d 848
• Parties: WELLS FARGO BANK, N.A., etc., Respondent, v. Joseph TRICARIO, et al., Defendants, Donna Tricario, Appellant.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 848

119 N.Y.S.3d 139

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

v.Joseph TRICARIO, et al., Defendants,Donna Tricario, Appellant.

2017-01975

2017-01977

Index No. 6507/144

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

Argued—November 12, 2019

February 13, 2020

Christopher Thompson, West Islip, NY, for appellant.

Fein, Such & Crane, LLP, Westbury, N.Y. (Michael S. Hanusek and Richard Femano of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Donna Tricario appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 23, 2016, and (2) an order of the same court entered October 17, 2016. The order entered September 23, 2016, 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 Donna Tricario, to strike that defendant's answer, and for an order of reference, and denied that defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against her. The order entered October 17, 2016, insofar as appealed from, granted the same relief and appointed a referee to compute the amount due to the plaintiff.

ORDERED that the appeal from the order entered September 23, 2016, is dismissed, as the portions of the order appealed from were superseded by the order entered October 17, 2016; and it is further,

ORDERED that the order entered October 17, 2016, is modified, on the law, (1) by the deleting the provision thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Donna Tricario, to strike that defendant's eighth affirmative defense, and for an order of reference, and substituting therefor a provision denying those branches of the motion, and (2) by deleting the provision thereof appointing a referee to compute the amount due to the plaintiff; as so modified, the order entered October 17, 2016, is affirmed insofar as appealed from, and the order entered September 23, 2016, is modified accordingly; and it is further,

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

The plaintiff commenced this action against, among others, the defendant Donna Tricario (hereinafter the defendant), to foreclose a mortgage encumbering residential real property located in East Meadow. The defendant answered and raised various affirmative defenses, including lack of standing and failure to comply with conditions precedent pursuant to RPAPL 1304 and the subject mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint, to strike the defendant's answer, and for an order of reference. The defendant opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against her based upon lack of standing and failure to properly provide notice of default as required by RPAPL 1304 and paragraph 22 of the mortgage agreement.

In an order entered September 23, 2016, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. In an order entered October 17, 2016, the court granted the same relief and appointed a referee to compute the amount due under the loan. The defendant appeals, and we modify.

In an action to foreclose a mortgage, where, as here, the plaintiff's standing has been placed in issue by the defendant's answer, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment (see Deutsche Bank Natl. Trust Co. v. Kingsbury, 171 A.D.3d 871, 872, 95 N.Y.S.3d 893 ; JPMorgan Chase Bank, N.A. v. Rosa, 169 A.D.3d 887, 889, 94 N.Y.S.3d 602 ; U.S. Bank N.A. v. Greenberg, 168 A.D.3d 893, 894, 91 N.Y.S.3d 459 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Nationstar Mtge., LLC v. Rodriguez, 166 A.D.3d 990, 992, 89 N.Y.S.3d 205 ; Central Mtge. Co. v. Jahnsen, 150 A.D.3d 661, 663, 56 N.Y.S.3d 107 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578 ; see Deutsche Bank Natl. Trust Co. v. Adlerstein, 171 A.D.3d 868, 870, 98 N.Y.S.3d 146 ; Nationstar Mtge., LLC v. Rodriguez, 166 A.D.3d at 992, 89 N.Y.S.3d 205 ).

Here, attached to the plaintiff's complaint was a copy of the underlying note, stamped with a specific endorsement to Residential Funding Company, LLC, by People's Choice Home Loan Inc., the original lender, to which was annexed an allonge bearing an endorsement in blank by Residential Funding Company, LLC. Contrary to the defendant's contention, "[t]his alone was sufficient to establish standing since it demonstrated that the plaintiff was in physical possession of the note at the time the action was commenced" ( Cenlar FSB v. Tenenbaum, 172 A.D.3d 806, 807, 101 N.Y.S.3d 68 ; see U.S. Bank N.A. v. Henry, 157 A.D.3d 839, 841, 69 N.Y.S.3d 656 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ). As to the defendant's contention that the plaintiff "admits it did not receive the note until 2014, yet the [pooling and servicing agreement] required the note be delivered seven years prior," "[a]s a mortgagor whose loan is owned by a trust, the appellant does not have standing to challenge the plaintiff's possession or status as assignee of the note and mortgage based on purported noncompliance with certain provisions of the relevant pooling and servicing agreement" ( U.S. Bank N.A. v. Saravanan, 146 A.D.3d at 1012, 45 N.Y.S.3d 547 ; see Bank of Am. N.A. v. Patino, 128 A.D.3d 994, 994–995, 9 N.Y.S.3d 656 ; Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176, 1178, 9 N.Y.S.3d 312 ).

Nevertheless, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the eighth affirmative defense, and for an order of reference, as the evidence submitted in support of the plaintiff's motion failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304 or that it substantially complied with the notice requirements pursuant to paragraph 22 of the mortgage agreement.

RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer must give notice to the borrower. The statute 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 (see RPAPL 1304[2] ). "Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 20, 98 N.Y.S.3d 273 ; see 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 ), "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 ). "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 proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 20–21, 98 N.Y.S.3d 273 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 508–509, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; Bank of Am., N.A. v. Bittle, 168 A.D.3d 656, 658, 91 N.Y.S.3d 234 ; Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1016, 76 N.Y.S.3d 182 ).

In this case, the plaintiff relied on the affidavit of a representative of the plaintiff's loan servicer and copies of the purported notices and U.S. Post Office receipts. The affidavit did not explain how the notations on the U.S. Post Office receipts established that the subject notices were actually sent to the defendant in the...