Nationstar Mtge. LLC v Brown

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Nationstar Mtge. LLC v Brown 2016 NY Slip Op 30725(U) April 18, 2016 Supreme Court, Kings County Docket Number: 505518/2014 Judge: Larry D. Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 04/18/2016 04:10 PM 1] INDEX NO. 505518/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/18/2016 At an LA;S. Trial Term, Part 41 Of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at Civic Center, Borough of Brooklyn, City and State of New A-fXL:\ , . York,onthe~ayof .2016 PRE SENT:' DON. LARRY D. MARTIN,J.S.C . . NATIONS TAR MORTGAGE LLC, MOTION SEQ. # 1 Plaintiff, ~against- INDEX KENNETH BROWN,et al No.: 505518/2014 Defendants .. The following papers numbered 1 to 2 read on this motion Papers Numbered Notice of Motion, Affirmation, Affidavits 1-2 Answering Affidavits Reply Affirmations and Affidavits Upon the foregoing papers, plaintiff moves this Court for an Order of Reference appointing a .' .' , Referee, default judgment and amending the caption. Dpon review, the motion is denied. . ' . Proper service of aRP APL 1303 notice is a condition precedent to commencing a foreclosure action and the "foreclosing party has the burden of showing compliance" (First Natl. Bank o/Chicago v.Silver, 73 AD3d 162, 166 [2d Dept 2010]). The notice:'mustbe 'delivered' with the summons and complaint" and the affidavits of service should demonstrate such compliance (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 102-03 [2d Dept 20U]). The notice pursuant ~oRPAPL 1303(a) specifically pertains to the mortgagor ofan owner occupied property whereas RP APL 1303(b) pertains 1 of 5 [* 2] , to any tenant of a dwelling unit as defined by the provisions of the section. Here, attached to the affidavits of service, plaintiff submits a copy of a RPAPL 1303(b) notice sent to Defendant Kenneth Brown ("Kenneth") as a tenant and not as a mortgagor. However, although the affidavit of service submitted by plaintiff appears to demonstrate compliance with other requirements ofthe section, it is insufficient to show that the content of the notice was compliant with the statute (see First Natl. Bank o/Chicago v Silver, 73 AD3d 162, 168.169 [2d Dept 2010] [holding compliance with HETP A's notice requirements, including RPAPL 1303, is a condition precedent]). As such, Plaintiff is directed to submit proof of compliance with RPAPL 1303(a). Additionally, "[p ]roper service ofRP APL 1304notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiffhas the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3 d 95, 106 [2d Dept 20 11]). The notice must be sent by certified or registered mail, as well as first-class mail (RP APL 1304 [2]). Here, plaintiff submits a copy ofthe two (2) notices sent to Kenneth, dated February 4, 2014 (attached as Exhibit E to the moving papers) at 1455 East 94th Street, Brooklyn, New York 1'1 236 (the "mortgaged , premises"). One of the notices lists a "Certified Mail" number of"7196 9006 9297 2190 4676" on the front upper right comer ofthe page while the other notice has no number listed. Plaintiff also submits a copy of an affidavit from an Assistant Secretary, Jerrell Menyweather ("Menyweather"). Menyweather states that, based upon a review and analysis of plaintiff s relevant business records and other relevant documents of plaintiff, "the servicing records show that the 90-day notices required by statute were mailed to defendant by regular and certified mail to both the last known mailing address Page 20f 5 2 of 5 [* 3] and to the property address on February 4, 2014" (Menyweather Affidavit, ,-r 7). Although, Menyweather references the service records, there" is no indication that Menyweather has personal knowledge of service of the RPAPL 1304 notice. Moreover, the papers do not demonstrate proof of such service - e.g., a certified mailing receipt and an affidavit from someone with personal knowledge ofthemailing(TDBank.NA. v Leroy, 121 AD3d -1256, 1257-58 [3d Dept 2014] [plaintiff did not submit proper certified mailing receipts, nor "an affidavit from anyone with personal knowledge of the mailing"]; see Deutsche Bank Natl. .Trust Co. v Spanos, 102 AD3d 909,910 [2d Dept 2013] [plaintiffs . . burden not met without an affidavit of service]; JPMorgan Chase Bank, NA. v Plaskett, 45 Misc 3d 531,534-35 [Sup Ct Kings County 2014]; see alsoWeisblum, 85 AD3d at 103). In this regard, plaintiff is directed to submit proof of compliance with RPAPL 1304. Claims that a party in an action is exempt from the settlement conference requirements ofCPLR 3408 because the property is not owner occupied must be substantiated by an Affidavit for an Exemption and an Affidavit of Investigation. "Every affidavit for an exemption from a conference made pursuant to CPLR 93408 and RP APL 91304 must specifY the grounds for same and provide supporting documentation and affidavits from persons with direct knowledge. Where the claim is that the borrower is not living in the subject house, then an affidavit of investigation substantiating this allegation must be appended which states inter alia that the borrower is not living in the house and that no action by the mortgagee or its agents procured same. This affidavit shall be included in the motion for a Judgment of Foreclosure and Sale." [Kings County Supreme Court Uniform Civil Term Rules, Part (F)(7)]. In his Affirmation in Support, Thomas Zegarelli, Esq. avers that: "Defendant is ineligible for a settlement conference because he does not satisfY the eligibility criteria set forth in the statutes. Specifically, to be eligible for a settlement conference, defendant must occupy or intend to occupy the mortgaged property as their principal dwelling. As evidenced Page 3 of 5 3 of 5 [* 4] by the Affidavits of Service annexed hereto as Exhibit 'I,' Kenneth Brown, does not occupy the subject property as their principal place of dwelling. Accordingly, since defendants failed to meet the foregoing criteria , they are not eligible for a settlement conference under the law" (plaintiffs Affirmation in Support of Order of Reference, ,-r >13). Kerry Allaire avers in the affidavit of information pertaining to nail and mail service (attached as Exhibit I of the moving papers), that the agent'made four (4) attempts on July 9, July 10, July 11 and July . 12,2014, respectively, to serve Kenneth at the mortgaged premises. Kerry Allaire further avers that on one of those dates, his agent "was able to speak with a neighbor 'Jane Doe' (refused name; F/BLK/BLK/5'4 "/150/45), tenant 4th floor, who confirmed that said defendant is currently residing at the mortgaged premises. Additionally, the Affidavit ofInformation states that a Skip "search revealed that said defendant's most current address is that of 1455 East 94th Street, Brooklyn, New York 11236 and' this is confirmed through 6/2014." On the contrary, plaintiff submits an Affidavit of Neighbor Confirmation by DavidP. Feldman ("Feldman"), in which he states that "'Jane Doe' confirms that Kenneth lives at the 10 East 43rd Street, Apt. 4J, Brooklyn, New York 11203." In light of conflicting statements regarding Kenneth's occupancy of the mortgaged premises, plaintiff is directed to submit an Affidavit ofInvestigation detailing the efforts that it undertook to confirm that Kenneth does not actually reside at the mortgaged premises, so as to. render a CPLR 3408 settlement conference unnecessary or RPAPL 1304 inapplicable to the case at bar (see MetLife Home Loans v. Pappu, 46 Misc.3d 1204[A] [Sup Ct, Kings County 20 14]; First United Mortgage Banking Corp. v. Valdivieso, 45 Misc.3d 1216[A] [Sup Ct, Kings County 2014]). That branch of the plaintiffs motion to amend the caption to substitute Joe Ferguson, Maria Ferguson, Naomi Ferguson and Marla Ferguson be substituted in place and instead of John Doe # 1, John Page 4 of 5 4 of 5 [* 5] Doe #2, John Doe #3 and John Doe #4 and that John Doe #s 5-12 are stricken is hereby granted and the caption is hereby amended to reflect same. The remaining branches of plaintiffs motion are denied without prejudice with leave to. renew upon .submission of (1) proof of proper service of the RPAPL 1303 and 1304 pre-:commencement notices upon Kenneth; and (2) an Affidavit ofInvestigation pursuant . " to the Kings County Supreme Court Uniform Civil Term Rules, Part (F) Rule (7). Upon renewal, plaintiff is directed to annex a copy of this decision and order to its motion papers. The foregoing constitutes the decision and order of the Court. For Cle~use MG EX J . MD Motion Seq. # only " APR 0 52016 L HON. LARRY D. MARTIN J.S.c. Page 5 of 5 5 of 5

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