We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP. Hon. Thomas F. Whelan of Suffolk County, New York granted the motion for summary judgment arguments made by the firm. Wilmington Savings Fund Society, FSB, as trustee cs. Jose Artola, et al, No. 6146662/2016, Suffolk Supreme Court, May 28, 2019.
The Court found that Plaintiff had met its burden of proof as to the prima facie elements of the motion for summary judgment. The burden then shifted to the defendants to raise genuine questions of fact rebutting Plaintiff’s prima facie showing. The Court then noted that affirmative defenses predicated on legal conclusions are subject to dismissal. Additionally, failure to raise plead affirmative defenses in Defendant’s opposition rendered them abandoned.
Anna Artola failed to answer the complaint and thus she waived all potential defenses. She, in fact, only had a possessory interest and was not a party to the mortgage itself. The Court found that an RPAPL 1304 defense is not jurisdictional and may be brought at any time during the action. As to denial of receipt of the RPAPL 1304 notice, a simple denial without more was found insufficient to merit dismissal. Plaintiff submitted an affidavit from the prior loan servicer, including access to records, kept in the regular course of business, and the servicers business practices. Further, proof of mailing may be done by actual proof of the mailing of the actual document or by detailing the standard office practice or procedure designed to ensure proper mailing. The Court found that the affidavit executed by the prior servicer properly demonstrated proper mailing. Thus, the motion for summary judgment was granted by the Court.
A great job by Eleazar Jacobs, Esq. of our firm! For more information regarding this case, please contact: Deborah Gallo, Director of Operations at [email protected]