In Deutsche Bank National Trust Company v. Bucicchia, Supreme County, Appellate Division, Second Department, NY April 7, 2021 (2021 Slip Op. 02132), the Appellate Court found that the judgment of foreclosure and sale be reversed as appealed from, some affirmative defenses reinstated, and plaintiffs’ motion to confirm referee’s report and judgment be denied.
The Supreme Court found that the plaintiff had proved their prima facie requirements as to standing. A copy of the note indorsed in blank as included as an exhibit to the Summons and Complaint at commencement which was affirmed by the Appellate Court.
However, the Appellate Division found that the Supreme Court should has dismissed the complaint as to providing the necessary proof as to RPAPL 1304. RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, … including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower” (see U.S. Bank N.A. v. Pierre, 189 A.D.3d 1309, 139 N.Y.S.3d 221). RPAPL 1304 requires that the notice be sent by registered or certified mail, and also by first-class mail to the last known address of the borrower (see RPAPL 1304; see also U.S. Bank N.A. v. Pierre, 189 A.D.3d 1309, 139 N.Y.S.3d 221; Deutsche Bank Natl. Trust Co. v. Crimi, 184 A.D.3d at 710, 126 N.Y.S.3d 197). Strict compliance with RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of the condition precedent. It is required that plaintiff establish the proof of regular mailing and certified mailing with personal knowledge. Here, the plaintiff relied upon the testimony of its sole witness, who testified as to the standard office mailing procedure of the plaintiff’s prior and present loan servicer, but did not and could not attest to the practices and procedures of Walz Group, a third-party entity that was hired to undertake the requisite service of the notices on the defendants in accordance with the requirements of the mortgage agreement and RPAPL 1304. The plaintiff’s witness expressly testified that she did not have familiarity with Walz Group’s mailing practices “outside of their communications with” the loan servicer. In addition, the witness attested that she never mailed anything through Walz Group, was never employed by Walz Group, and was never trained by Walz Group in their procedures for mailing notices. Further, she testified that she could not say if Walz Group mailed the notices by first-class mail.
Thus the Appellate Court found that personal knowledge of mailing practice of the third party mailer Walz Group was not provided and the business records that were submitted in evidence failed to show that the requisite first-class mailings of the RPAPL 1304 notices or the notices of default were actually made to the defendants or that the default notices were actually delivered to their “notice address.” An example of the need to attest to business practices of the entity charged with the mailing of the notice.
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