HSBC Bank USA, N.A. v Sabo

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HSBC Bank USA, N.A. v Sabo 2017 NY Slip Op 31885(U) August 24, 2017 Supreme Court, Suffolk County Docket Number: 03213/2013 Judge: Howard H. Heckman 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. [* 1] SUPREME COURT - STA rE OF NEW YORK IAS PART 18 - SUFFOLK COUNTY PR ES ENT: HON. 110\VARD II. HECKMAN JR., J.S.C. ----------------------------------------------------------------)( I !SBC BANK USA. N.A. Plaintiffs. INDEX NO.: 03213/2013 \lfOTION DATE: 03/14/2017 MOTJON SEQ. NO.: 002 MD 003 MD PLAINTIFFS' ATTORNEY: McCABE. WEISBERG AND CONWAY. P.C. 145 HUGUENOT ST.. STE. 210 NEW ROCHELLE, NY 10801 -against- DEFENDANTS' ATTORNEYS: MELISA SABO . .JOSEPH G. KUBACKI. Defendants. HAROLD A. STEUERWALD. LLC 11 2 SOUTH COUNTRY RD. , STE. 116 BELLPORT, NY 11713 ----------------------------------------------------------------)( l 'pon 1he follo\\ ing papers numbered I to 37 read on this motion : . 011ce of Motion/ Order to Show Caust' and papas 1-11 (#002). 12-27 (11003 l : No1ice of Cross Motion and supponing papers 28-30 : Answering Aftidavits and supporting papers_: Replying Atlida·;its and supporting papers 31-37 : 01her_: (and afler hearing counsel in support and opposed to lhc motion) it 1s. ~upporting ORDERED that this motion by plaintiff HSBC Bank USA. N.A. seeking an order: 1) granting summary judgment striking the answer of defendants Joseph Kubacki and Melisa Sabo; 2) discontinuing the action against defendants designated as "John Doe# l" to ''John Doe # 10"; 3) deeming all appearing and non-appearing defendants in default: 4) amending the caption; and 5) appointing a referee to compute the sums due and owing to the plaintiff in this 111011gage foreclosure action is granted to the fo ll owing extent: OROERl~ D that plaintiff is awarded partial summary judgment dismissing all affirmative ddcnses set forth in defendants· answer except the tenth. eleventh (only with respect to issues related to compliance with RPJ\PL 1304 & 1306) and twelfth affirmati ve defenses: and it is fu1iher ORDERED that plaintiffs application to discontinue the action against defendants designated as ··John Doe # I" through ..John Doc # IO" is granted and the caption is hereby amended by deleting from the caption the defendants designated as ··.John Doc ti I" through "John Doe # IO" : and it is further ORDERED that plaintiffs application for an order appointing a referee to compute amounts Jue is Jcnied \\ ithuut prejudice. as such request is premature. The proposed order submitted by the plaintiff shall be marked .. not signed": and it is further ORDERED that the cross motion by defendan ts Mel isa Sabo and Joseph G . Kubacki for an order pursuant to CPLR 3211 (a)(3 ). 3212 & RP APL 1303 & 1304 dismissing plaintiff's complaint [* 2] for lack of standing and for failure to timely serve pre-foreclosure statutorily required notices of default or. in the alternative. denying p1aintiff s summary judgment motion is denied: and it is further ORDERED that pursuant to CPLR 32 I 2(g) in aid for disposition of the action. the sole remaining issues to be determined in this foreclosure action shall concern whether the plaintiff complied with pre-foreclosure mortgage and RP APL 130~ & 1306 default notice requirements and lhc trial of this action shall be limited to those issues: and it is further ORDERED that all parties shall appear for a court conference to ready this matter for trial or to provide a brie!ing schedule for an additional summary judgment motion (see Kole! Damsek Elie::er. Inc. '" Schlesinger. 139 AD3d 810, 33 NYS3d 284 (2"d Dept.. 2016)) at 9:30 a.m. on September 26. 2017 in Part 18 at the Cou1thouse located at 1 Court Street, Riverhead, NY; and it is further ORDEREl) that plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of the Court; and it is further ORDERED that plaintiff is directed to file a notice or entry within five days ofreceipt of this Order pursuant to 22 NYC RR Section 202.5-b(h)(3 ). Plaintiff's action seeks to foreclose a mortgage in the original sum of $278,800.00 executed by defendant Melisa Sabo on June 22, 2006 in favor ofI ISBC Mortgage Corporation (USA). On the same date defendant Melisa Sabo also executed a promissory note promising to re-pay the entire amount of the indebtedness to the mortgage lender. By assignment dated January 17, 2012 Mortgage Electronic Registration Systems. Inc. as nominee for I ISBC Mortgage Corp. (USA) assigned the mortgage to plaintiff HSBC Bank USA, N.A. Plaintiff claims that defendant Sabo defaulted under the terms of the mortgage and note by failing to make timely monthly mortgage payments beginning April I. 2011. Plaintiff commenced this action by filing a summons, complaint and notice of pendency in the Suffolk County Clerk's Office on January 29. 2013. Plaintiffs motion seeks an order granting summary judgment striking defendants' answer and for the appointment of a referee. In support of their cross motion and in oppos ition to plaintiffs motion, defendants submit an aflidavit from dercndant Melisa Sabo and two attorney affirmations and claim that: I) plaintiff failed to serve pre-foreclosure notices of default in compliance with mortgage and RP APL 1303 & 1304 requirements; and 2) plaintiff lacks standing to maintain this action requiring dismissal of the compla int. Defendants claim that the evidence submi tted by plaintiff in support of its summary judgment motion from the mortgage servicer is inadmissible hearsay since the mortgage servicer representatives do not possess personal knowledge of the business records record-keeping methods and such testimony does not therefore qualify as an exception to the hearsay rule. Defendants also claim that the copy of the promissory note attached as an exhibit to plaintiffs original summary _1udgmcnt motion. (which was denied by Order (Jliou. J.) dated December 12. 20 14) was unindorsed and questions or fact therefore ex.isl concerning the plaintiffs submission of an indorsed in blank promissory note in support of this (second) summary judgment motion. Defendants also claim that plaintiff has failed to -;ubmit documentary evidence to prove that plaintiffs mortgage servicer (.. Rcsickntial Mortgage Loan Administrative Services .. ) had authori ty to act on behalf of HSBC Bank USA. N./\. -2- [* 3] In opposition to the cross motion and in further support of its motion, plaintiff submits an attorney's affirmation and an affidavit from an assistant vice president of the mortgage servicer and argues that no basis exists to deny plaintiffs application for an order granting summary judgment. Plaintiff claims that the proof s ubmitted in the fo rm of an affidavit from the mo11gage servicer's employees. together with copies of the promissory note and mortgage agreement. provide sufficient evidence entitling the mortgage lender to foreclose the mortgage. Plaintiff contends the mortgage servicer's representati ves' affidavits detailing the bank records pertaining to the defendant's note and mortgage satisfies the business records exception to the hearsay rule and 1:eveals that the defendant has defaulted under the terms of the mortgage by failing to make mortgage payments for more than six years. Plaintiff claims the evidence shO\vs that HSBC has standing to maintain this action as the holder and continuous physical possessor o f the promissory note since February 6, 201 2. Plaintiff also claims that the proof s ubmitted shows that the defrndant was properly served with preforcclosure default notices in compliance with the terms of the mo11gage and RPAPL Sections 1303 & 1304. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of Jaw. tendering sufficient evidence to eliminate any material question of fact from the case. The grant of summary judgment is appropriate only when it is clear that no material and triable issues of fact have been presented (Sillman v. Twentieth Century -Fox Fi/111 Cmp.. 3 NY2d 395 (1957)). The movi ng party bears the initial burden of proving entitlement to s ummary judgment ( 1Vinegrad v. NYU Medical Center. 64 NY2d 851 ( 1985)). Once such proof has been proffered, the burden shifts to the opposing party who, to defeat the motion, must offer l!vidence in admissible fo rm. and must set forth facts sufficient to require a trial of any issue of fact (CPLR 3212(b); Zuckerman 1'. City ofNew York, 49 NY2d 557 (1980)). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law (Friends ofAnimals v. Associated Fur Manufacrurers . 46 NY2d l 065 (1979)). Entitlement to summary judgment in favor of the foreclosing plaintiff is established, prima foc ie by the plaintiff s production of the mortgage and the unpaid note, and evidence of default in payment (see Ff/ells Fargo Bank N. A. "· Erobobo, 127 AD3d 1176, 9 NYS3d 312 (2"d Dept., 20 l 5); Wells Fargo Bonk, N.A. r. Ali. 122 AD3d 726, 995 NYS2d 735 (2"d Dept. , 20 14)). Where the plaintiffs standing is placed in issue by the defendant 's answer, the plaintiff must also establish its s tanding as part of its prima facie showing (Aurora Loan Services v. Taylor, 25 NY3d 355, 12 N YS3d 612 (20 15 ): Loancare v. Firshing . l 30 J\D3d 787. 14 NYS3 d 41 0 (2"d Dept.. 2015 ): HSBC Bank USA. NA. 1'. Raptis1e. 128 AD3d 77. 10 NYS3d 255 (211J Dept.. 2015)). In a fo reclosure action. a plaintiff has standing if it is either the holder of. or the assignee of, the underlying note at the time that the action is commenced (Aurora Loan Services v. Taylor. supra.: Emigrant Bank ' '· Lari::::::::a. 129 A D3cl 94, 13 NYS3d 129 (2 11' 1 Dept.. 2015 )). Either a written assignment of the note or the physical transfer or the note to the plain ti ff pri or to commencement of the action is sufficient to transfer the obligation and to provide standing (Wells Furgo Bank. N11. v. Parker. 125 AD3d 848, 5 NYS3 d 130 (2"'1 Dept. , 20 15): U.S. Bank 1'. Gz~J '. 125 J\D3d 845. 5 NYS3d 11 6 (2'"1 Dept.. 2015)) . A plaintiff's attachment of a duly indorsed note to its complaint or to the certificate of merit required pursuant to CPLR .30 l 2(b ). coupled \Yi th an aflidavit in which it alleges that it had possession of the note prior to the commencement of the action. has been held to constitute due proof of the plaintiffs standing to prosecute its claims for foreclosure and sa le (JPMorgan Chase Bank. N A. ,.. We;nberf(er 142 AD3d 643. 37 NYSJd 286 (2".i Dept .. 2016): FNJ\!A 1·. Yakaput:: fl. Inc.. 141AD3d506. 35 -3- [* 4] N YS3d 236 (2"u Dept.. 2016 ): Deutsche Bank National Trust Co. v. Leigh. 13 7 AD3d 841 , 28 NYS3d 86 (2"u Dept., 2016): Natiunstar Jvfortgage LLC v. Cati::one. 127 AD3d 1151, 9 NYS3d 315 (2"d Dept.. 2015 )). Proper service of RP APL 1303 & 1304 notices on borrower(s) are conditions precedent to the commencement of a foreclosure action. and the plaint1 ff has the burden of establishing compliance with this condition (Aurora loan Sen·ices. LLC v. Weisblum. 85 AD3d 95. 923 NYS2d 609 (2nd Dept.. 2011 ); First National Bank u.f Chicago 1'. Silver. 73 AD3d 162. 899 N YS2d 256 (2"d Dept.. 20 I 0) ). RP APL 1303 requires that notice be delivered with the summons and complaint to commence the moitgage foreclos ure action. The notice must be in bold. fom1ee n-point type and shall be printed on colored paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold, twenty-point type and the notice shall be on its own page. RP APL 1304(2) provides that notice be sent by registered or certified mail and by first-class mail to the last · known add ress of the borrower(s), and if different, to the residence that is the subject of the mortgage. The notice is considered given as of the date it is mailed and must be sent in a separate envelope from any other mailing or notice and the notice must be in 14-point type. T he plaintiffs proof in support of its motion consists of: 1) a copy of the promissory note signed by defendant Melissa Sabo and indorsed in blank by a vice president of the original m011gage lender HSBC Mortgage Corporation; 2) a copy of the June 22, 2006 mortgage signed by defendant Melisa Sabo; 3) a copy of the assignment of the mortgage dated January 17, 20 12 from MERS as nom inee for HSBC Mortgage Corporation to HSBC Bank USA. N.A. : 4) two individual affidavits from a vice president and an assistant vice president of PI IH Mortgage Corporation, the mortgage loan servicer for plaintiff HSBC. testifying about the contents of the loan (business) records maintained by the mortgage lender: 5) a copy of the mortgage loan default notice dated June 10. 2011. together with copies of the RP APL 90 day notices dated f ebruary I. 20 12. and a copy of the RP A PL 1306 Proof of Filing Statement from the New York State Department of Financial Services; 5) a copy of the RP APL 1303 notice. together with an at1idavit of service dated February 6, 2013, attesting to serv ice of the summons and complaint and RP APL 1303 notice by personal service on defendant Sabo on February 2. 2013. At issue is whether the evidence submitted by the plainti ff is sufficient to establish its right to foreclose. The defendant does not contest her failure to make payments due under the terms of the promi ssory note and mortgage agreement. Rather, the issues raised by the defendant concern whether the proof submitted by the mortgage lender provides sufficient admissible evidence to prove its entitlement to s ummary judgment based upon defendant's cont inuing default plaintiffs compliarn.:c with mortgage and statutory pre-foreclosure notice requirements and plaintiffs standing to maintain thi s action C PLR 45 l 8 provides : Busin ess records. (a) Generally. Any writing or record, whether in the fo rm o f an en tr)' in a book or otherwise. made as a memorandum or record of any act. transaction. occurrence or event. shall be admissible in evidence in proof of that act. transaction. occurrence or event. ir the judge fi nds that it was made in the regular course of any business -4- [* 5] and that it was the regular co urse of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. The Court of Appeals in People v. Guidice. 83 Y2d 630. 635, 612 N YS2d 350 (1994) explained that ··the essence of the business records exception to the hearsay rule is that records systematically made for the conduct of business ... arc inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of the enterprise." (quoting People v. Kennedy, 68 NY2d 569. 579. 510 NYS2d 853 ( 1986)). [tis a unique hearsay exception since it represents hearsay deliberately created and differs from all other heaJsay exceptions which assume that declarations which come within them were not made deliberately with litigation in mind. Since a business record keeping system may be designed to meet the hearsay exception, it is important to provide predictability in this area and discretion should not normally be exercised to exclude such evidence on grounds not foreseeable at the time the record was made (see Trotti v. Estate o.fBuchanan. 272 AD2d 660, 706 NYS2d 534 (3rd Dept., 2000)). The three foundational requirements of CPLR 45 l 8(a) are: 1) the record must be made in the regular course of business- reflecting a routine, regularly conducted business activity. needed and relied upon in the performance of business functions; 2) it must be the regular course of business to make the records- (i.e. the record is made in accordance with established procedures for the routine, systematic making of the record): and 3) the record must have been made at the time of the act transaction. occurrence or event. or within a reasonable time thereafter. assuring that the recollection is fairly accurate and the entries routinely made (see People ' '· Kennedy. supra@ pp. 579-580)). The ··mere filing of papers received from other entities. even if such papers are retained in the regular course of business. is insufficient to qualify the documents as business records." (People v. Cratsley. 86 NY2d 81. 90. 629 YS2d 992 ( 1995)). The records will be admissible ·'if the recipient can establish personal knowledge of the maker's business practices and procedures. or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business." (State of New York\'. 158'" Street & Riverside Drire Housing Company. Inc .. I OOAD3d 1293, 1296, 956 NYS2d 196 (2012); leave denied. 20 NY3d 858 (2013); see also Vfric111e Etienne Medical Care. P. C. v. Coun//y-JVide Jm·w·an~e Company, 25 NY3d 498, 14 NYSJd 283 (2015 ): Deutsche Bank ,1\Tational Trust Co. ' '· Jvfonica, 13 1 AD3d 737, 15 NYS3d (3rd Dept.. 20 15): People '" DiSall'o. 284 AD2d 54 7. 727 NYS2d 146 (2"d Dept.. 2001 ); J V/aller of Carothers 1·. GEICO. 79 A03d 864. 914 NYS2d 199 (2'"1 Dept., 2010) ). In this regard, with respect lo mortgage foreclosures. a loan servicer"s employee may testify on behalf of the mortgage lender and a rcprcsentati ve of an assignee of the original lender can rely upon business records of the original lender to establish its claims for recovery of amounts due from the borrowers provided the assignee/plaintiff establishes that it incorporated the original records into its own records and relied upon those records in the regular course of business (Landmark Capital bw Inc. , .. Li-Shan Wang, 94 ADJd 418. 941NYS2d144 (1'1 Dept.. 2012): Por((olio Recm·e1:\'Associates. LLC v. Lall. 127 AD3d 576. 8 YS3d 101 (ls1 Dept.. 2015): i\lerrill Lynch Business Financial Services. Inc.''· Trataros Co11structio11. Inc.. 30 AD3d 336. 819 NYS2d 223 (I 51 DepL 2006)). In this case. the plaintiffs e,·idcntiary foundation to prove its entitlement to foreclose the morlgagc hinges on the admissibility of two afiidavits the mortgage lender has submitted from employees of the current mortgage servicer (PlII I Mortgage Corporation). The first affidavit dated February 26. 2016. entitled ··Affidavit of Amount Due··. is from a PHH vice president and sets forth -5- [* 6] the proof relevant to defendant ' s default in making payments due under the terms of the mortgage and promissory note, and to service of the pre-foreclosure default notices required by the mortgage and RPAPL 1304 & 1306. The second affidavit dated January 12, 2017, entitled "Affidavit of Possession", is from a PHH assistant vice president and sets forth the proof relevant to plaintiffs possession of the original promissory note prior to commencement of the foreclosure action. Both affidavits contain near identical statements addressing the business records exception to the hearsay rule (CPLR 4518 ). The mortgage servicer's employees ' affidavits state: "2. In the regular performance of my job functions, I have access to and am familiar with business records maintained by the Servicer for the purpose of servicing mo11gage loans. I have personal knowledge of the manner in which these business records are created. These records (which include data compilations, electronically imaged documents, and others) are: (a) made at or near the time of the occrnTence of the matters set forth by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records ; and (b) kept as a regular practice and in the ordinary course of business conducted by the Servicer. It is the regular practice of the Servicer to make such records. To the extent records related to the Loan come from another entity (includ ing, but, not limited to the prior servicer*), those records were received by Servicer in the ordinary course of business, have been incorporated into and maintained as part of Servicer's business records, and have been relied on by Servicer. In connection with making this Affidavit, I reviewed and relied on those business records concerning the Loan."(* indicates the affidavit dated 1112/17). Of primary importance in determining whether these affidavits conform to requirements for admissibility as business records exceptions to the hearsay rule, is the issue of whether the hearsay contained in the business documents is essentially reliable given the rationale for the existence of the exception which is that records systematically made for the conduct of business as a business are inherently highly trustworthy since the records serve in place of the safeguards ordinarily afforded by confrontation and cross examination (see Williams v. Alexander. 309 NY 283, 129 NE2nd 417 (1955)). ·while defense counsel points to a series of decisions which emphasize a need for a current servicer's representative to have "personal knowledge" of a prior servicer's business record-keeping practices and procedures (see Aurora Loan Services. LLC r. BarUz. 144 AD3d 618, 41NYS3d55 (2"d Dept., 2016): HSBC v. Royal. 142 AD3d 952, 37 NYS3d 321 (2"d Dept., 2016): Deutsche Bank National Trust Co. v. Brewton. 140 AD3d 948, 34 NYS3d 463 (2"d Dept., 2016); US Bank V Handler. 140 AD3d 948. 34 NYS3d 463 (2"d Dept.. 2016): Aurora Loan Services, LLC v. lvfercius. 138 AD3d 650. 29 NYS3d 462 (2"d Dept., 2016): Citibank. NA. v. Cabrera, 130 AD3d 861, 14 NYS3d 420 (211J Dept.. 2015) ), the statute (CPLR 4518) clearly does not require a person to have personal knowledge of each and every entry contained in a business record, particularly in this case, where there is a business relationship between mortgage servicing entities responsible for entering and maintaining accurate records. and where the current servicer has incorporated and relied upon the business records it maintains in its regular course of business (see Citibank NA. v. Abrams, 144 AD3d 1212. 40 NYS3d 653 (Yd Dept., 2016): I!SBC Bank USA. NA . v. Sage. 112 AD3d 11 26, 977 NYS2cl 446 (3rd Dept., 20 13): Landmark Capital Im·. Inc. "· LI-Shan Wang. supra.) ). As the Appellate Division, Second Department recently stated in Citigroup v. Kopelowitz. 14 7 AD3d I 0 I 4, 48 NYS3d 223 (2"d Dept.. 2017): ·'There is no requirement that a plaintiff in a -6- [* 7] foreclosure action rely on a particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 45 l 8(a) and the records themselves actually evince the facts for which they are relied upon." Decisions interpreting CPLR 4518 are consistent to the extent that the three foundational requirements: l) that the record be made in the regular course of .business: 2) that it is in the regular course of business to make the record; and 3) that the record must be made at or near the time the transaction occurred. - if demonstrated, make the records admissible since such records are considered trustwo11hy and reliable. And clearly, if each of these criteria are established. the records of a predecessor-in-interest lender or predecessor morcgage servicer. can be introduced as evidence in suppon of a foreclosing plaintiffs prima facie case since those business entries accurately recorded underlies the intent of the business records exception (People v. Cratsley. supra.: Citibank v. Abrams. supra.: Deutche Bank National Trust Co. 1•. Monica. supra.: HSBC Bank USA . NA. v. Sage, supra.: Landmark Capital Inv. Inc. v. Li-Shan Wang. s upra.)). Moreover, the language contained in the statute specifically authorizes the court discretion lo determine admissibility by slating "[lthejudgefind\·" that the three foundational requirements are satisfied the evidence shall be admissible. With respect to the issue of standing, paragraph 6 of plaintiff's mortgage servicer's assistant vice president' s affidavit states the following: ''6. After Melisa Sabo executed the Note, the original Note was delivered to I ISBC Bank USA, N.A. as custodian. The custodian received the original Note on February 6. 2012. The custodian remains in custody of the original Note. and docs so as agent for the current owner of the Loan and Note, HSBC Bank USA. .A ... · This testimony provides relevant. admissible evidence to establ ish plaintiffs standing to maintain this foreclosure action since submission of an affidavit from the mortgage servicer (and not necessarily the owner of the mortgage loan) attesting to plaintift~s possession of the note at commencement of the action is sut1icient to establish the bank's standing (see Wells Fargo Bank. NA. v. Lewc=uk. 2017 NY Slip Op 06318, 2017 WL 3611646 (2"d Dept., 8/23/2017) ;HSBC Bank USA, ;v.A. 1•. Arm{ios. 151 /\D3d 943. 2017 WL 2662557 (2 11d Dept., 2017): Central Mortgage Co. v. Dal' is. 149 /\03d 898. 53 NYS3d 325 (2'1d Dept., 2017); We!!s Fc11·Ko Bank, N.A. v. Ostiguy, 127 AD3d 1375, 8 NYS3d 669 (3'd Dept., 2015): U.S. Bank. NA. v. Crnz. 147 AD3d 1103, 47 NYS3d 459 (2"" Dept.. 20 17)). Defendan( s contention that the mortgage servicer's vice president's affidavit constituted inadmissible hearsay because she did not have personal knowledge of the plaintiffs record-keeping practices and procedures is without merit (CPLR 4518: see Wells Fargo Bank, NA. '" Thomas. 150 AD3d 1312, 52 NYS3d 894 (2 11d Dept .. 2017): Citigroup v. Kopelowit:.. supra.); ff'e/ls Far!:[o /Ja11k. N.A. r . Gallagher. 137 AD3d 898. 28 NYS3d 84 (2" 0 Dept., 2016)). Plaintiff has also established standing by attaching a certified copy of the promissory note to its complaint which. taken together \\·ith the servicer' s allidavit. provides surticienl proof to establish standing (U.S. Bunk. N A. '" .)'uh/off. 2017 Y Slip Op 06313, 2017 WL 3611653 (2"d Dept.. 2017); JPMorgan Chase Bunk. X..1. 1· Weinberger. supra.: Natio11star .\for/gage LLC 1•. Catizone. supra.) With respect lo the issue of the defendant Sabo's default in making payments, paragraph 9 of plaintiffs mortgage servicer's vice president's affidavit states the following: ··9. The payments have not been made according lo the terms -7- or the Note and [* 8] Mortgage. The Loan is currently due for the April 2011 payment and aU payments thereafter." In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, the plaintiff must submit the mortgage, the unpaid note and admissible evidence to show default (see ·I'ennyMac Holdings, Inc. V Tomanelli, 139 AD3d 688. 32 NYS3d 181 (211d Dept., 2016): North American Savings Bank v. Esposito-Como. 141 AD3d 706. 35 NYS3d 491 (2nd Dept. , 2016); Washington A1utual Bank v. Schenk. 112 AD3d 615. 975 NYS2d 902 (2nd Dept., 2013)). Plaintiff has provided admissible evidence in the form of a copy of the note and mortgage. and an affidavit attesting to the defendant's undisputed default in making timely mortgage payments sufficient to sustain its burden to prove defendant has defaulted under the terms of the parties agreement by failing to make timely payments for the past six+ years (CPLR 4518: see Wells Fargo Bank, NA . v. Thomas, supra.: Citigroup v. Kopelowitz, supra.)). Accordingly, and in the absence of any proof to raise an issue of fact concerning her continuing default, p laintiff's application for partial summary judgment against the defendant based upon her breach of the mortgage agreement and promissory note must be granted. With respect to service of the RP APL 1303 notice, plaintiffs proof consists of a copy of the affidavit of service from the process server stating that the'' 1303 Notice- Help for Homeowners in Foreclosure in bold fourteen-point type and printed on colored paper, and the title of the notice printed in twenty-point type in compliance with RPAPL Sect 1303. Bearing Index Number 1303213 .. ··was personally served with the summons and complaint to defendant Sabo on February 2, 2013 at 11 :37 a.m. The process server's affidavit constitutes prima facie evidence of proper service of the RP APL 1303 notice and it is incumbent upon the defendant to submit credible, admissible evidence in the form of an affidavit containing specific and detailed contradictions of the claims set forth in the process server's affidavit (CPLR 306; US. Bank. NA . v. Tauber, 140 AD3d 1154, 36 NYS3d 144 (2"d Dept. , 2016): NYCTL v. Tsafinos, l 01 AD3d 1092, 956 NYS2d 571 (2"d Dept., 2012)). Defendant's conclusory affidavit that she never received the RPAPL 1303 notice, after having received the summons and complaint is not credi ble and fails to provide sufficient evidence to raise a genuine issue of fact concerning service of this statutory condition precedent (see Grogg v. South Road Associates, 74 AD3d 1021, 907 NYS2d 22 (2nd Dept.. 20 10); Emigrant klortgage Co. v. Gosdin. 119 AD3d 639, 989 NYS2d 609 (2"d Dept., 2014)). With respect to service of the pre-foreclosure mortgage RPAPL 1304 90-day notices, the proof required to prove strict compliance with the statute can be satisfied: 1) by plaintiffs submission of an anidavit of service of the notices (see CitiJ\!Jor1gage. Inc. v. Pappas. 147 AD3d 900, -t 7 NYS3d 415 (2 J Dept.. 2017): Bank q( New J'ork Mellon v. Aquino, 13 1 AD3d 1186, 16 NYS3d 770 (2"'1 Dept.. 2015): Deutsche Bank National Trust Co. v. Spanos, I 02 AD3d 909. 961 NYS2d 200 (2"J Dept., 20 l 3)); or 2) by plaintiffs submission of sufficient proof to establish '·proof o f mailing by the post office'' (CitiAfor!gage. Inc. v. Pappas. supra pg. 901: see Wells Fargo Bank. N.A. v. Trupia. 150 AD3d 1049, 55 NYS3d 134 (2 11J Dept., 2017)). Once either method is established a presumption of receipt arises (see 1'i\·iane Etienne Medical Care. P. C. v. Country-Wide Insurance Co .. supra. : Flagstar Bank v. Mendoza. 139 AD3d 898. 32 NYS3d 278 (2"d Dept., 2016); Residenlial llolding COip. r . Scottsdale Insurance Co .. 286 AD2d 679, 729 NYS2d 766 (2nd Dept. , 200 I)). 11 While the business records exception to the hearsay rule provides a mechanism to establish -8- [* 9] the foundation for the proof necessary to prove com~ iance, recent appellate rulings have required that the affidavit submitted by the mortgage service provider' s representative set forth his/her personal familiarity with the mailing practices and procedures of the business entity responsible for doing the actual mailing (Citi.Mortgage. Inc. v. Pappas. supra.: Wells Fargo Bank. NA. v. Trupia, rnpra. : Wells Fargo Bank. NA. ' " lewc=uk. 2017 NY Slip 06318. 2017 WL 3611646 (2nd Dept., 2017); Investors Savings Bank v. Salas. 152 AD3d 752. 2017 WL 3161068 (2°d Dept., 2017); JPMorgan Chase Bm?k v. Kutch. 142 AD3d 536, 36 NYS3d 235 (2"d Dept., 2016)). In this case, there is insufficient documentary evidence to prove that mailing by certified and first class mail was done by the post oflice, since plaintiff has only submitted copies of the 1304 notice and a RPAPL 1306 proof of filing statement. Moreover. since a prior servicer performed the actual mailing of the required RP APL 1304 notices. there is insufficient proof submitted to prove strict compliance with the RP APL 1304 mandates, since the servicer's affidavits do not affirm that these notices were sent according to standard office mailing practice and procedures of the prior servicer. Based upon these circumstances, plaintiff has failed to demonstrate its entitlement to summary judgment on the issue of compliance with the requirements of RP APL 1304 (see Wells Fargo Bank, NA. v. Lewczuk, 2017 NY Slip Op 06318, 2017 WL 3611646 (2 11d Dept., 2017); Citibank. NA. v. Wood. 150 AD3d 813, 2017 WL 1903218 (2"d Dept., 2017): M & T Bank v. Joseph. 152 AD3d 579, 2017 WL 2961421 (2"d Dept, 2017)). For the same reasons, the affidavits submitted by the current mortgage servicer are insufficient to prove that the notice of default required under the terms of the mortgage was served by the plaintiff (see U.S. Bank, N.A. v. Sabio.ff 2017 NY Slip Op 06313, 2017 WL 3611653 (2"d Dept., 8/23/2017); Emigrant Bank v. Myers. 147 AD3d 1027, 4 7 NYS3d 446 (2"d Dept., 2017);Deutsche Bank National Trust Co. v. Carlin. 152 AD3d 491 , 2017 WL 2855918 (211d Dept., 2017); HSBC 111/ortgage Corp. v. Gerber. 100 AD3d 966, 955 NYS2d 131 (2"ct Dept., 2012). With respect to defendant's claims of fraud, there is no credible evidence submitted by the defendant to support ber claim that the indorsed in blank promissory note submitted by the plaintiff in support of its summary judgment motion is fraudulent and no basis therefore exists to dismiss the complaint on such an assertion (HSBC Bank USA. NA . v. Armijos. supra.). Plaintiff has also submitted sufficient proof of the mortgage servicer' s authority to act on behalf of the plaintiff by submission of a Limited Power of Attorney dated January 21, 2016. Finally as the defendant has failed to raise any evidence to address her remaining affirmative defenses (of the 23 asserted in her answer) in opposition to plaintiffs motion, those affirmative defenses must be deemed abandoned and are hereby dismissed (see Kronick v. LP. Therault Co .. foe .. 70 AD3d 648, 892 NYS2d 85 (2"d Dept. , 2010): Citibank. N.A. v. Van Brunt Properties. LLC. 95 AD3d 1158. 945 NYS2d 330 (2"d Dept., 2012); Flagstar Bankv. Bellafiore. 94 A03d 1044. 943 NYS2d 551 (2 11<1Dept.,2012); Wells Fargo Bank Minnesota. NA"- Pere:::. 41 AD3d 590, 837 NYS2d 877 (2"d Dept.. 2007)). According ly, the defendant's cross motion seeking dismissal of plaintiff's complaint is denied. Plaintiffs motion seeking summary judgment is granted solely to the extent indicated hereinabove. A conference shall be held for the purpose of either scheduling a limited issue trial pursuant to CPLR 3212(g). or a briefing schedule for submission of another summary judgment motion. HON. HOWARD H. HECKMAN, JR, Dated: August 24, 2017 J.S.C. -9-

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