Wilmington Sav. Fund Soc'y, FSB v. Kutch

• Decision Date: 16 February 2022
• Docket Number: 2019-01580,Index No. 5355/10
• Parties: WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., respondent, v. Suzanne KUTCH, appellant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1030

162 N.Y.S.3d 478

WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., respondent,

v.Suzanne KUTCH, appellant.

2019-01580

Index No. 5355/10

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

Argued—September 10, 2021

February 16, 2022

Richard J. Sullivan, Port Jefferson, NY, for appellant.

Peter T. Roach & Associates, P.C., Syosset, NY (Michael C. Manniello of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Suzanne Kutch appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 20, 2018. The order and judgment of foreclosure and sale, upon an order of the same court entered November 2, 2017, inter alia, granting that branch of the cross motion of JPMorgan Chase Bank, National Association, the plaintiff's predecessor in interest, which was for leave to renew those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant Suzanne Kutch, to strike her answer, and for an order of reference, which had been denied in an order of the same court dated January 7, 2013, and, upon renewal, in effect, vacated the determination in the order dated January 7, 2013, and thereupon granted those branches of the motion of JPMorgan Chase Bank, National Association, which were for summary judgment on the complaint insofar as asserted against the defendant Suzanne Kutch, to strike her answer, and for an order of reference, and upon an order of the same court entered April 10, 2017, denying the motion of the defendant Suzanne Kutch, in effect, for summary judgment dismissing the complaint insofar as asserted against her, granted the motion of JPMorgan Chase Bank, National Association, for a judgment of foreclosure and sale, confirmed the referee's report, 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, the motion of JPMorgan Chase Bank, National Association, for a judgment of foreclosure and sale is denied, so much of the order entered November 2, 2017, as, upon renewal, in effect, vacated the determination in the order dated January 7, 2013, denying those branches of the motion of JPMorgan Chase Bank, National Association, which were for summary judgment on the complaint insofar as asserted against the defendant Suzanne Kutch, to strike her answer, and for an order of reference, and thereupon granted those branches of that motion is vacated, and upon renewal, the determination in the order dated January 7, 2013, denying those branches of the motion of JPMorgan Chase Bank, National Association, which were for summary judgment on the complaint insofar as asserted against the defendant Suzanne Kutch, to strike her answer, and for an order of reference is adhered to.

On October 5, 2006, the defendant Suzanne Kutch (hereinafter the defendant) executed a note in favor of Washington Mutual Bank, FA (hereinafter WAMU), in the principal sum of $900,000. The note was secured by a mortgage on certain residential property located in Port Washington.

In March 2010, the plaintiff's predecessor in interest, JPMorgan Chase Bank, National Association (hereinafter JPMorgan), commenced this action against, among others, the defendant to foreclose the mortgage. In the complaint, JPMorgan alleged that it had complied with the notice requirements of RPAPL 1304. In her answer, the defendant denied that allegation and raised, among other affirmative defenses, lack of standing.

In or about September 2012, JPMorgan moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant. In an order dated January 7, 2013, the Supreme Court, among other things, denied that branch of JPMorgan's motion. However, in an order dated October 28, 2013, the court, among other things, upon reargument, in effect, vacated the determination in the order dated January 7, 2013, denying that branch of JPMorgan's motion which was for summary judgment on the complaint insofar as asserted against the defendant, and granted that branch of the motion.

The defendant appealed from the order dated October 28, 2013. This Court reversed the order insofar as appealed from, in a decision and order dated August 10, 2016, determining that, upon reargument, the Supreme Court should have adhered to its prior determination denying that branch of JPMorgan's motion which was for summary judgment on the complaint insofar as asserted against the defendant (see JPMorgan Chase Bank, N.A. v. Kutch, 142 A.D.3d 536, 36 N.Y.S.3d 235 ).

In or about January 2017, the defendant moved, in effect, for summary judgment dismissing the complaint insofar as asserted against her on the ground that JPMorgan failed to comply with RPAPL 1304. In an order entered April 10, 2017, the Supreme Court denied the motion. The defendant thereafter moved for leave to reargue and/or renew her prior motion, and JPMorgan cross-moved, inter alia, for leave to renew those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference, and to amend the caption to reflect the assignment of the mortgage, in November 2015, to the plaintiff.

In an order entered November 2, 2017, the Supreme Court, inter alia, denied the defendant's motion, granted that branch of JPMorgan's cross motion which was for leave to renew and, upon renewal, granted those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. In an order and judgment of foreclosure and sale entered November 20, 2018, the court granted JPMorgan's motion for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject 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 U.S. Bank N.A. v. Hammer, 192 A.D.3d 846, 847–848, 143 N.Y.S.3d 695 ). "The statute requires that such notice ... be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower" ( Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1016, 76 N.Y.S.3d 182 [internal quotation marks omitted]; see RPAPL 1304[2] ; U.S. Bank N.A. v. Hammer, 192 A.D.3d at 848, 143 N.Y.S.3d 695 ). Compliance with these requirements 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 17, 21, 98 N.Y.S.3d 273 [internal quotation marks omitted]; see CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550, 556, 145 N.Y.S.3d 1, 168 N.E.3d 1138 ; U.S. Bank N.A. v. Hammer, 192 A.D.3d at 848, 143 N.Y.S.3d 695 ).

Here,...