Bank of N.Y. Mellon v Govan

[*1] Bank of N.Y. Mellon v Govan 2018 NY Slip Op 51491(U) Decided on October 26, 2018 Supreme Court, Suffolk County Quinlan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2018
Supreme Court, Suffolk County

The Bank of New York Mellon F/K/A THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-37T1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-37T1, Plaintiff,

against

Robert L. Govan, ET AL., A/K/A ROBERT GOVAN, D. EDWARD BULGIN AND JOHN DOE #1 THROUGH JOHN DOES #10, (UNKNOWN TENANTS/OCCUPANTS OF THE SUBJECT PROPERTY BEING SET FORTH TO REPRESENT ANY AND ALL OCCUPANTS OF THE SUBJECT PROPERTY BEING FORECLOSED HEREIN, AND ANY PARTIES, ENTITIES OF ANY KIND, IN ANY, HAVING OR CLAIMING AN INTEREST OR LIEN UPON THE MORTGAGED PROPERTY), Defendants.



060727/2014



FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP Attorneys for Plaintiff

53 Gibson Street

Bay Shore, NY 11706

CHARLES WALLSHEIN, ESQ.

Attorney for Defendant Govan

35 Pinelawn Road, Suite 106E

Melville, NY 11747
Robert F. Quinlan, J.

Upon the following papers read on these motions for summary judgment by defendant dismissing complaint (Mot. Seq. #002): NYSCEF Docs # 44-50; plaintiff's opposition: NYSCEF Docs # 51-65; plaintiff' summary judgment motion dismissing defendants remaining affirmative defense (Mot. Seq. #003): NYSCEF Docs # 66-89; defendant's cross-motion seeking summary judgment dismissing complaint and in opposition (Mot. Seq. #004): NYSCEF Docs #90-103; plaintiff's opposition to cross-motion and in reply: NYSCEF Docs # 104-113; it is

ORDERED that defendant Robert L. Govan's motion styled as a "Motion For Summary Judgment Pursuant to RPAPL § 1304" (Mot. Seq. # 002), plaintiff's motion for summary judgment pursuant to CPLR 3212 dismissing defendant Robert L. Govan's fourth affirmative defense (Mot. Seq. #003) and defendant Robert L. Govan's cross-motion to dismiss for failure to comply with RPAPL 1304 and the notice of default in the mortgage (Mot. Seq. #004) are consolidated for purpose of this decision; and it is further

ORDERED that defendant Robert L. Govan's "Motion For Summary Judgment Pursuant to RPAPL § 1304" (Mot. Seq. #002) and his cross-motion to dismiss for failure to comply with RPAPL 1304 and the notice of default in the mortgage (Mot. Seq. #004) are denied; and it is further

ORDERED that plaintiff's motion for summary judgment dismissing defendant Robert Govan's fourth affirmative defense, striking and dismissing his answer and for appointment of a referee to compute pursuant to RPAPL § 1321 (Mot. Seq. # 003) is denied and it is further

ORDERED that this action is scheduled for limited issue trial before this part in accordance with the prior decision of the court on Tuesday, January 15, 2019 at 9:30 AM, in Part 27, Arthur M. Cromarty Court Complex, 210 Center Drive, 4th floor, Rm 17, Riverhead, NY. Counsels' attention is drawn to 22 NYCRR §§ 202.32, 125.1 (g) and 202.27.

PRIOR PROCEEDINGS

This is an action to foreclose a mortgage on residential real property located in Suffolk County. The prior history of this action is contained in the court's decision on plaintiff Bank of New York Mellon f/k/a/ the Bank of New York As Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-37T1, Mortgage Pass Through Certificates, Series 2005-37T1's ("plaintiff') motion for summary judgment (Mot. Seq. # 001) set forth on the record after oral argument on January 19, 2017. Defendant Robert L. Govan ("defendant") did not file a cross-motion, his then second counsel only opposed plaintiff's motion. That decision, in addition to granting plaintiff's application to amend the caption, dismissed all of defendant's affirmative defenses, except his fourth affirmative defense which raised compliance with the default [*2]requirements of the mortgage, as plaintiff's proof was insufficient to establish the mailing of that notice. At the same time the court issued a discovery and scheduling order setting a limited issue trial on that sole remaining issue, authorizing a brief period of discovery on that issue, after which a note of issue was to be filed, and the parties were authorized to file successive summary judgment motions within thirty days of the filing of the note of issue.

Recognizing that there had been decisions by the Second Department that had indicated that issues of compliance with the requirements of RPAPL § 1304 can be raised by a defendant at almost anytime, as long as defendant had filed an answer (see First Natl. Bank of Chicago v Silver, 73 AD3d 162 [2d Dept 2010];Aurora Loan Services v Weisblum, 85 AD3d 95 [2d Dept 2011]; Citimortgage v Espinal, 134 AD3d 876 [2d Dept 2015]; Emigrant Mortgage Co., Inc v Lifshitz, 143 AD3d 755 [2d Dept 2016]), in the decision of January 19, 2017 the court addressed the possibility of such an issue being raised by defendant here (see transcript p. 25 - 26). Because this court has too frequently had to deal with defendants last minute attempts to raise such claims for the first time at oral argument, the court stated that if defendant intended to address that issue he should do so in the authorized successive motion for summary judgment and not wait for some later time. Plaintiff and defendant's third and present counsel executed a Compliance Conference Order (with certification) on June 28, 2017 which provided that a note of issue was to be filed by August 2, 2017 and modified the order of January 19, 2017 by authorizing the parties to file summary judgment motions within sixty days of that filing. NYSCEF records show that the note of issue was filed August 3, 2017, but as defendant has not raised the one day late filing an issue in either his motion or cross-motion, it is waived.

Both parties accepted the court's invitation to file summary judgment motions, but defendant appears to have accepted it twice. Defendant filed his "first summary judgment motion" ("defendant's first motion") on August 9, 2017. Plaintiff opposed that motion, but then filed its own summary judgment motion on August 30, 2017 and defendant cross-moved, filing his "second summary judgment motion" ("defendant's second motion") on September 20, 2017.

NO VIOLATION OF RPAPL § 1304 (2)

The court first addresses defendant's first motion in which he claims to be entitled to summary judgment dismissing the complaint for plaintiff's failure to comply with defendant's counsel's interpretation of the requirements of RPAPL § 1304 (2).

Plaintiff's claim in opposition that the order of January 19, 2017, which set the limited issue trial solely as to proof of plaintiff's mailing of the notice of default required by the mortgage (defendant's fourth affirmative defense), is the law of the case and that defendant is precluded from raising RPAPL § 1304 compliance in any form having not raised it previously, is misplaced. Before defendant's present counsel filed his notice of appearance, defendant had been represented by two other law firms experienced in defense of foreclosure actions and neither firm raised RPAPL § 1304 compliance as an affirmative defense or in opposition to plaintiff's first motion for summary judgment. Under many other circumstances failure to raise an issue which could have been raised in opposition to summary judgment would have been a waiver of that issue and defendant would have been precluded from raising it later, but as indicated above the Second Department has made it clear that RPAPL § 1304 compliance may "be raised at any [*3]time" by a mortgagor who has answered.[FN1] The court recognized this in its decision of January 19, 2017 in the transcript passages referred to above, for the purpose stated above. Although the court incorrectly anticipated that the RPAPL § 1304 challenge would be to the sufficiency of the proof of mailing, any other challenge to failure to comply with that statute was available to defendant. Plaintiff's argument claiming preclusion is without merit.

Defendant's first motion is based upon plaintiff's alleged violation of the prohibition contained in RPAPL § 1304 (2) that the notice required by the statute "shall be sent by lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice." Defendant argues that strict compliance with the provisions of RPAPL § 1304 is mandated, claiming that plaintiff included other "notices" in the envelope, and therefore the action must be dismissed, citing Hudson City Savings Bank v DePasquale, 113 AD3d 595 (2d Dept 2014). Defendant is specific in making this objection the sole basis for summary judgment dismissal as his counsel acknowledges in his affirmation that "[t]here is no factual dispute as to the sufficiency of the mailing" of the RPAPL § 1304 notices as submitted by plaintiff, and that defendant admits receiving the mailings (see par. 16 of counsel's affirmation), and raises no other objections to the content or sufficiency of the notice pursuant to RPAPL § 1304 (2), or any other provision of RPAPL Article 13.

It is unnecessary to discuss plaintiff's arguments in opposition that the language of federally required disclosures made pursuant to bankruptcy law and required to protect the rights of our military are "beneficial," nor defendant's peremptory arguments against that claim as confusing borrowers, as defendant is hoisted on his own petard.

In relying upon the holdings in Aurora Loan Services v Weisblum, supra, and Hudson City Savings Bank v DePasquale, supra, defendant's counsel fails to recognize the significant difference between those cases and this: there both plaintiffs acknowledged their failure to comply fully with the requirements of RPAPL § 1304. Here plaintiff makes no such concession, and rightly so for it's notice complies with the requirements of RPAPL § 1304 (1) and the mailing did not contain "any other mailing or notice" in violation of RPAPL § 1304 (2).

Defendant correctly states that a court is without discretion to add or remove language in a statute (see Chemical Specialties Mfrs. Ass'n v Jorling, 85 NY2d 382 [1995]), yet his argument that strict compliance with the "no other mailing or notice" standard of RPAPL § 1304 (2) was violated because plaintiff mailed two other "notices" in the same envelope as the RPAPL § 1304 notices requiring dismissal actually calls on the court to violate that principle by adding a requirement to the statute that the legislature did not put there; that the notices only include the language set forth in RPAPL § 1304 (1) and nothing else.

Defendant contends that the first two pages of plaintiff's "notice" dated April 22, 2013 is the "notice" mandated by the statute, and that the next (third) page containing federally required warnings concerning bankruptcy and military rights is a "separate notice" contained in the same [*4]envelope in violation of RPAPL § 1304 (2) requiring dismissal. Defendant makes no argument or reference to the fourth page listing housing counseling agencies as a separate and illegal notice. In drawing his conclusion that page three contains two "separate notices," defendant fails to recognize a few obvious things concerning each notice that make it clear that all four pages are part of just one notice. First, page two does not contain any formal end to what defendant claims is the singular, two page RPAPL § 1304 notice; there is no signature line, "thank you" or any formal ending that one would expect at the conclusion of a document, letter or notice. Instead there is a blank space and a document that continues on to pages 3 and 4. Further, and even more significant, although there is no pagination on the lower left hand corner of the first page of the notice, each of the following three pages have pagination in the lower left hand corner: "2 of 4," "3 of 4" and "4 of 4." Clearly plaintiff sent these four pages all as part of a single four page document. The court recognizes that plaintiff's counsel did not make this argument, but the court cannot ignore what is obviously before it.

When defendant's argument is tested against the clear statutory language of RPAPL § 1304 (1), read in conjunction with RPAPL § 1304 (2), its lack of merit is apparent. There are no multiple notices here, only a single notice consisting of multiple pages. At the time the notices were mailed, RPAPL § 1304 did not, and does not now even after the most recent amendment, require that the notice "only" contain the language mentioned in the body of RPAPL § 1304 (1). The statute states that plaintiff or servicer " shall give notice to the borrower in at least fourteen-point type which shall include the following" (emphasis added). This clearly implies that more than just the statutory language may be part of the RPAPL § 1304 notice (RPAPL § 1304 (1); see Citimortgage, Inc. v Bunger, 58 Misc 3d 333, 341 [Sup Ct, Suffolk County 2017]; Beneficial Homeowner Services Corp v Jordon-Thompson, 57 Misc 3d 1213(A), 2017 NY Slip Op. 51424(U) (Sup Ct, Suffolk County 2017). Defendant's unsupported assumption that somehow it was the unexpressed intent of the legislature that the RPAPL § 1304 notices must contain only the language set forth in RPAPL § 1304 (1), and nothing else, is contradicted by this plain and literal language of the statute. If defendant's claims had been the intent of the Legislature, the Legislature would have said so in the original statute or one of the six amendments since its first effective date. It has not, and as pointed out by defendant, the Court of Appeals has clearly and frequently stated: "A court cannot amend a statute by inserting words that are not there nor will a court read into a statute a provision which the Legislature did not see fit to enact.... an inference must be drawn that what is omitted or not included was intended to be omitted and excluded." (Chemical Specialties Mfrs. Ass'n v Jorling, 85 NY2d 382, 394; see also People v Silburn, 31 NY3d 144, 174 [2018]; People v Tiger, _NY3d_, 2018 NY Slip Op 04377 [2018]). The court agrees with defendant's statement of this principle and will not read into RPAPL § 1304 (1) and (2) the requirement that the mandated notice must only contain the statutorily required language.

Defendant's first motion seeking dismissal for failure to comply with the defendant's interpretation of the mandates of RPAPL § 1304 is denied.

ONLY ONE SUMMARY JUDGMENT MOTION AT A TIME

The court next addresses what appears to be a few awkward errors in defendant's two motions seeking summary judgment. Although under certain circumstances a successive [*5]summary judgment motion after a prior denial of summary judgement by the court may be acceptable, a party is not entitled to make multiple summary judgment motions in tandem, which is what defendant has done here. On August 9, 2017, defendant filed his first motion. That motion only raised the claim that plaintiff violated the provision of RPAPL § 1304 (2) by including "multiple notices" in the same envelope as set forth above; it did not raise any other claim for dismissal based upon RPAPL § 1304 or a claim for summary judgment dismissing the action based upon defendant's fourth affirmative defense the sole remaining issue to be addressed after the decision of January 19, 2017.

Instead of cross-moving in response to defendant's first motion, plaintiff chose to file a separate motion for summary judgment addressing defendant's fourth affirmative defense on August 30, 2017 (Mot. Seq. #003). In response defendant filed a cross-motion "to dismiss" (Mot. Seq. #004), (defendant's second motion) again alleging plaintiff's violation of RPAPL § 1304 (2)'s prohibition, but also raising additional claims for dismissal based upon plaintiff's alleged failure to comply with the default notice required by the mortgage, that plaintiff's list of housing counselors included in the RPAPL § 1304 notice was deficient, and, perhaps, a claim that the proof of mailing of the RPAPL § 1304 notice was deficient requiring dismissal. Although defendant's second motion was styled as one to dismiss, it met none of the requirements of a motion pursuant to CPLR 3211, and was in fact a second motion for summary judgment made while defendant's first such motion was still pending and undecided.

Defendant provides no authority for a party to file two independent summary judgment motions which would be pending before the court at the same time. Defendant has not asked to withdraw his first motion, to amend it to include his newly raised grounds for dismissal or to consolidate his two summary judgment motions. It has long been recognized as a general principle of summary judgment that a moving party is required to assemble and lay bare all its proof in support of the motion (see Maurice O'Meara Co. v. National Park Bank of New York, 239 NY 386 [1925]; Dodwell & Co. I.nc. v. Silverman, 234 AD 362 [1st Dept 1932]; M & S Mercury Air Conditioning Corp. v. Rodolitz, 24 AD2d 873 [2d Dept 1965]). Failure to do so is done at the party's risk, as movant bears the heavy burden of establishing a prima facie showing of entitlement to judgment as a matter of law, providing sufficient proof to demonstrate the absence of any material issue of fact (see Deleon v. New York City Sanitation Dept., 25 NY3d 1102 [2015]). The court could find no case law that addresses the issue of such tandem summary judgment motions by a party, perhaps that is because it is otherwise obvious that they cannot be made and that a party is required to raise all of his/her/its claims for summary judgment available at the time in the "first" summary judgment motion filed.

It appears to the court that defendant "forgot" to mention his claim for dismissal based upon his fourth affirmative defense in defendant's first motion and then attempts to cross-move on that basis in defendant's second motion. Additionally, although defendant basically repeats his arguments made in his first motion for dismissal pursuant to RPAPL § 1304 (2), he also adds a new RPAPL § 1304 (2) claim that he "forgot" to raise in his first motion, that plaintiff's housing counsel notice fails to provide five agencies in the "county" where the property was located. Also, the attorney who prepared this second motion (a different attorney than the one who prepared the first motion) may have made an error in his submissions, perhaps because of the use of forms from prior motions in other cases, which appear to raise a claim that the mailing [*6]of the RPAPL § 1304 notices were deficient. No matter the reason, defendant's attempts are unsuccessful as the court will not entertain tandem summary judgment motions from defendant. Having failed to "assemble and lay bare" his arguments for summary judgment dismissal in his first motion, defendant waived those grounds for dismissal he attempts to raise in his second motion, although plaintiff must still establish its right to dismissal of the fourth affirmative defense to be successful in its motion.

Defendant's "cross-motion for dismissal" contained in his second motion filed September 20, 2017, is dismissed as procedurally defective. It will be treated solely as defendant's opposition to plaintiff's motion, and as such is successful as further explained below.

Even if the court considers these newly raised issues in defendant's second motion for summary judgment, it would find against defendant as he had not established his entitlement to the relief as a matter of law. Defendant's claim for dismissal based upon his fourth affirmative defense because he did not receive the notice of default and because plaintiff's proof of the mailing may be insufficient to establish plaintiff's right to dismissal of the fourth affirmative defense as a matter of law is misplaced. By merely stating he did not receive the notice, defendant has not established as a matter of law that it was not mailed. As with any motion for summary judgment, defendant's burden on this issue is to establish by evidentiary proof in admissible form that the mailing was not made. The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence to establish the absence of any material issues of fact, failure to do so requires the motion to be denied regardless of the sufficiency of the opposition (see Jacobsen v New York City Health & Hospitals Corp., 22 NY3d 824 [2014]; William J Jenack Estate Appraiser and Auctioneers v Rabizadeh, 22 NY3d 470 [2013]). A party moving for summary judgment bears the heavy burden of establishing a prima facie showing of entitlement to a judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Deleon v NY City Sanitation Dept., supra). As with standing, the burden is not on plaintiff to establish compliance with the mailings for defendant's motion to be denied, it is sufficient if plaintiff's submissions raise questions of fact (see HSBC Bank USA v Lewis, 134 AD3d 764 [2d Dept 2015]; U. S. Bank, Nat. Assoc. v Noble, 144 AD3d 786 [2d Dept 2016]; New York Community Bank v McClendon, 138 AD3d 805 [2016]; Aurora Loan Servs, LLC v. Komarvsky, 151 AD3d 924 [2d Dept 2017]). If defendant fails to establish that plaintiff did not make the mailing, its motion is to be denied (see US Bank N.A. v Weinman, 123 AD3d 1108 [2d Dept 2014]; Flagstar Bank, FSB v Campbell, 137 AD3d 853 [2d Dept 2016]). Where plaintiff's proof failed to establish its mailing of the notice required by the mortgage, a defendant is not entitled to summary judgment based upon his affidavit claiming non-receipt, as it failed to present sufficient evidence to prove as a matter of law that the contractual condition precedent was not fulfilled (see US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]; HSBC Bank, USA, NA v Ozcan, 154 AD3d 822 [2d Dept 2017]).

COMPLIANCE WITH PROOF OF MAILING OF RPAPL § 1304 NOTICES WAIVED

Another awkward issue raised by defendant's second motion are statements in that motion which contradict defendant's counsel's statements in the first motion, as well as contradict [*7]statements made in defendant's second motion in the affirmation of the attorney who prepared that motion, as well as in defendant's affidavit, all of which admit proper proof of mailing of the RPAPL § 1304 notices by plaintiff.

As noted above, in defendant's first motion, defendant's counsel stated clearly that "[t]here is no factual dispute as to the sufficiency of the mailing" of the RPAPL § 1304 notices and that defendant admitted receiving the notices. Additionally, in defendant's second motion, the affirmation of the attorney who prepared it stated that defendant did not dispute the mailing of the RPAPL § 1304 notices and that defendant admitted receiving those notices (see par. 5 and 25 of his affirmation). Further, the affidavit of defendant in par. 5 stated "[t]here is no factual dispute as to the sufficiency of the mailing" and went on in par. 7 to state that "[t]he Court's only decision to make here is whether Plaintiff's § 1304 Notice violates § 1304 (2)."

Yet also in his affirmation in the second motion, the same attorney claims that proof of mailing of the notice of default required by the mortgage and the mailings of the RPAPL § 1304 notices were insufficient:

In this motion sequence Defendant objects to Plaintiff's proof of mailing for both the 1304and 30 Day Notice as inadmissible because the Bank's affiant cannot lay a proper foundation for the documents relied upon to prove the mailing by regular and certified mail. Plaintiff does not meet its burden on the face of its affidavit. Summary Judgement must be denied. (citations omitted) (par. 57, emphasis added).

This attorney then went on in par. 61 of his affirmation to attack the proof of the certified mailing required by RPAPL § 1304, which in the following paragraphs meld into a general attack on plaintiff's proof of mailing of both the notices required by RPAPL § 1304 and the mortgage, but states in par. 70: "Without proof of mailing by regular mail and certified mail Plaintiff's motion is facially defective and fails as a matter of law." As the mortgage default notice does not require certified mailing, this can only be considered as another reference to the RPAPL § 1304 notices. Later, the same attorney, in par. 71 of his affirmation states that "[p]laintiff has not demonstrated mailing pursuant to paragraph 22 of the mortgage since plaintiff has failed to produce an affidavit of service or other proof of mailing of the requisite § 1304 notice (citations omitted)," (emphasis added). Although the next few pages of the attorney's affirmation made arguments concerning the failure to establish mailing of the mortgage default notice, his wherefore clause makes a general claim that the complaint should be dismissed for "noncompliance with RPAPL § 1304 as well as with the contractual condition precedent...."

The court dismisses any attempt in defendant's second motion to raise a claim that the plaintiff's proof of mailing of the notices required by RPAPL § 1304 were deficient. The acknowledgments by defendant's counsels that the proof of mailing is sufficient and defendant's acknowledgment of receipt of the RPAPL § 1304 notices are binding upon defendant, (see Hallock v State, 64 NY2d 224 [1984]; Bellino v Bellino Const. Co. Inc., 75 AD2d 630 [2d Dept 1980];Pok Rye Kim v Mars Cup Co., Inc., 102 AD2d 812 [2d Dept 1984]). Defendant's own judicial admissions in his affidavit are also binding upon him and his attorneys, as it has long been recognized that judicial admissions are conclusive of the issues admitted in the action in which they are made (see Coffin v Grand Rapids Hydraulic Co., 136 NY 655 [1893]).

Any argument that defendant's counsel has raised as to plaintiff's failure to establish [*8]proof of the mailing of the RPAPL § 1304 notices will be disregarded, as defendant has admitted their mailing, as well as their receipt.

CLAIM OF ADDITIONAL RPAPL § 1304 (2) VIOLATION DISMISSED

In paragraph 28 of his affirmation on defendant's second motion, counsel raises a claim that plaintiff's RPAPL § 1304 notice was defective because there were not five Suffolk County housing counseling agencies ("agencies") listed in violation of RPAPL § 1304 (2). As defendant did not raise this in his first motion where he specifically attacked RPAPL § 1304 (2) compliance, by failing to "assemble and lay bare all his proof" of a violation of RPAPL § 1304 (2) defendant has waived this claim.

Even if the court had considered this claim, the court would have dismissed it. Defendant's counsel fails to apply the provisions that were in effect when the notices were mailed in April 2013. The version of RPAPL § 1304 (2) in effect at that time required that the notice list "at least five housing counseling agencies as designated by the division of housing and community renewal, that serve the region where the borrower resides."(emphasis added). Defendant counsel's argument refers to the version of RPAPL § 1304 (2) that became effective on December 20, 2016, which required those agencies to be "serving the county where the property is located..." (emphasis added). Counsel, as well as the court, is aware that prior to the 2016 amendment the "regions" were much broader geographic areas than a single county. At one point, Suffolk County was in a region that included parts of the Lower Hudson Valley, subsequently Suffolk County was part of the Long Island Region, which also included Nassau County. In the notice mailed by plaintiff, there are two Nassau County agencies, as well as three Suffolk County agencies. As defendant has not established the "region" applicable when the mailings occurred in April 2013, he has not established the notices did not list five agencies in the "region."

MAILING OF MORTGAGE DEFAULT NOTICE NOT ESTABLISHED

The sole remaining issue after the decision of January 19, 2017 was plaintiff's proof of mailing of the default notice required by the mortgage ("the notice"), raised by defendant's fourth affirmative defense. Plaintiff's attempt to address the issue and obtain dismissal of the fourth affirmative defense fails, as did plaintiff's first motion (Mot. Seq. #001) on this issue, because of the insufficiency of the affidavits submitted.

Although plaintiff's notice of motion lists that there are three affidavits attached in support, there are only two attached, those of Alicia Wood, and Nicole Hegel. Although listed in the notice of motion, there is no affidavit from Kyra Schwartz. As the court recalls from plaintiff's first motion, Ms. Schwartz was an employee of plaintiff's first law firm who provided an affidavit in support of the issue of plaintiff's standing to bring the action, confirming her firm's possession of the indorsed note prior to filing the action. As the court resolved the issue of standing in favor of plaintiff in the decision of January 19, 2017, there would be no need for her affidavit now.

The notice was prepared and mailed by Bank of America ("B of A"), servicer for plaintiff [*9]at that time. In plaintiff's first motion an affidavit of an employee of B of A, Paul Zupke, was submitted in an attempt to prove the mailing, but it was inadequate. Although Mr. Zupke established his ability to testify as to B of A's business records pursuant to CPLR 4518, the decision of January 19, 2017 pointed out that his affidavit contained only conclusory and unsubstantiated statements concerning the mailing of the notice which have been held to insufficient to establish mailing (see HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2d Dept 2015]; Cenlar, FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; U. S. Bank, N.A. v Carey, 137 AD3d 894 [2d Dept 2016]). The court assumed that a more suitable affidavit establishing proof of mailing from him or another employee of B of A would be submitted on this motion.

Instead, plaintiff submitted two affidavits of representatives of two subsequent servicers, Ms. Wood and Ms. Hegel, both of which are even more insufficient to establish the mailing of the notice. Ms. Wood is a vice-president of Residential Credit Solutions, Inc. ("Residential") and her affidavit establishes her ability to testify as to Residential's business records pursuant to CPLR 4518, but not the business records of the mailing entity, B of A. Her only reference to business records of B of A in her affidavit is that she claims that Residential's records, at the time of her affidavit in February 2016, include records that were delivered to Residential in "by a prior servicer in the ordinary course of business," presumably B of A. The reference is made only to establish default in payment, there is no reference in her affidavit to the mailing of the notice.

The August 9, 2017 affidavit of Ms. Hegel states that she is an employee of Ditech Financial, LLC ("Ditech") the servicer of plaintiff at that time. She too establishes her ability to testify to the business records of her employer, Ditech, pursuant to CPLR 4518, but attempts to try to meld the business records made by prior servicers, such as B of A, into Ditech's business records merely because Ditech says it incorporated them into its records. She states that "Ditech maintains quality control and verification procedures as part of the integration process to ensure the accuracy of the integrated records" without describing what those procedures are and how accuracy is ensured. The mere claim that a prior servicer's records, like B of A's, are "integrated and relied upon by Ditech as part of Ditech's business records"does not meet the standards set by the Second Department for the admissibility of the prior servicers records as business records. She fails to establish her personal knowledge of the business practices and procedures of B of A, both as to its business records practices in general and specifically as to their mailing practices and procedures. She then oddly goes on, in paragraph 6 of her affidavit, to describe Ditech's business practices and procedures for entering information in their systems to establish mailings as if Ditech's procedures could be a basis for the admission of the attached exhibits as Ditech's business records and show the mailing of the notice of default in 2013. It is clear that the exhibits are not Ditech's records and would have never gone through Ditech's procedures for mailing in 2013, especially as Ditech was not the servicer at the time.

Those records she refers as Exhibit "1" are at best B of A's records, but perhaps someone else's records. They bear a marking that appears to be a "Walz" copyright dated 2015. The limited power of attorney submitted immediately after Ms. Hegel's affidavit appears to appoint Ditech as a servicer as of May 5, 2016. Just below and to the right of the Walz copyright on the first and third pages of Exhibit "1" is a printed statement "Generated : 8/12/2015," and at the bottom of each page of the three pages is what appears to be an "internet print out" that shows [*10]the pages were printed from what appears to be a "web site" on "8/12/2015." There is no explanation what these documents mean, who generated them, how they were generated or how Ms. Hegel could claim these records generated almost a year before Ditech became service relate to Ditech's mailing procedures that she described.

Further, the three pages of Exhibit "1" purport to establish mailings that were made in 2013. There is no explanation as to how a computer program which was copyrighted in 2015 can contain entries made in 2013. There may be an explanation, but it is not in Ms. Hegel's affidavit. Also, it is clear that the notice, a copy of which was attached as Exhibit "3" to Ms. Hegel's affidavit, is from B of A; it is addressed from B of A on their stationery, and in the middle bottom of each page of the three page letter it states "This communication is from Bank of America, N.A., the servicer of your home loan." Yet, Ms. Hegel does not lay out any familiarity with any business practices and procedures of B of A or any other prior servicer which could make this "evidence" admissible pursuant to CPLR 4518.

An affidavit of a representative which fails to establish the affiant's personal knowledge of business practices and procedures of plaintiff or a prior servicer, is inadmissable and cannot be used to establish facts based upon the prior servicer's business records ( CPLR 4518; see Deutsche Bank Natl. Trust Co. v Carlin, 152 AD3d 491 [2d Dept 2017]; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650 [2d Dept 2016]; Aurora Loan Servs., LLC v Bartiz, 144 AD3d 618 [2d Dept 2016]; Bank of NY v Willis, 150 AD3d 652 [2d Dept 2017]; Aurora Loan Servs v. Komarovsky, 151 AD3d 924 [2d Dept 2017]; ; Wells Fargo Bank, NA v Talley, 153 AD3d 583 [2d Dept 2017]; Bank of NY Mellon v Cutler, 154 AD3d 910 [2d Dept 2017]; Bank of NY Mellon v Alli, 156 AD3d 957 [2d Dept 2017]).

Even if Ms. Hegel's affidavit had been admissible pursuant to CPLR 4518, it would still have been insufficient to establish mailing of the notice as she fails to set forth and provide a description of the office practice and procedures of the mailing entity, B of A, that would have established the mailing. Unsubstantiated and conclusory statements in an affidavit of a representative, along with dated copies of the notices, are insufficient to prove that the notices were properly mailed (see HSBC Mtge. Corp. v Gerber, supra; Citimortgage, Inc. v Espinal, supra; Cenlar, FSB v Weisz, supra; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]). To establish mailing, plaintiff may provide proof of actual mailing or a description of its office's practice and procedure for mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; Citimortgage Inc. v Banks 155 AD3d 936 [2d Dept 2017]). Due proof of the mailing of the notices can be established by submission of an affidavit of service (see JPMorgan Chase Bank, N.A. v Schott, 130 AD3d 875 [2d Dept 2015]; Wells Fargo v Moza, 129 AD3d 946 [2d Dept 2015]) or through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp., v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Citimortgage v Banks, supra). There is no affidavit of service and Ms. Hegel fails to establish the office practice and procedures of B of A to ensure mailing.

Plaintiff's motion to dismiss defendant's fourth affirmative defense is denied.

LIMITED ISSUE TRIAL

As a note of issue has been filed and parties have had the opportunity to engage in post note of issue summary judgment motions, the court will entertain no further motions for summary judgement or other relief. This case will proceed to trial.

The court schedules this single issue trial as to plaintiff's proof of mailing the notice of default required by the mortgage for Tuesday January 15, 2019 at 9:30 AM in this part. The parties are expected to be ready to proceed with the trial on that date. As this date is being fixed at least two months in advance, the parties attention is drawn to the provisions of 22 NYCRR §§ 202.32, 125.1 (g) and 202.27. The parties are advised that if on a scheduled trial date any party fails to appear and answer "ready to proceed" at the call of the calendar the court may, without further notice, grant judgment by default against any defendant who fails to appear and answer "ready," or dismiss the action against any plaintiff who fails to appear and answer "ready;" or make such other order as may be just.

Any request for adjournment must be made in writing by facsimile to the court at least 48 hours prior to the scheduled trial date (in the case of Tuesday trials requests for adjournment are to be received by 4:30PM on the prior Friday), on consent or notice to opposing counsel. Any adjournments of the trial will only be granted in the discretion of the court, upon good cause shown.

This constitutes the Order and decision of the Court.

Dated: October 26, 2018

_______________________________________

Hon. Robert F. Quinlan, J.S.C. Footnotes

Footnote 1:More accurately, it has been held that it cannot "be raised at any time," as it cannot be raised for the first time after a judgment of foreclosure has been issued (see Emigrant Bank v. Marando, 143 AD3d 856 [2d Dept 2016]; Bank of America v. Barton, 149 AD3d 676 [2d Dept., 2017]); nor can it be raised by a defendant-mortgagor in default, unless the default is first vacated (see HSBC Bank, N.A. v Clayton, 146 AD3d 942 [2d Dept 2017]; Bank of America v. Agarwal, 150 AD3d 651 [2d Dept 2017]), and it has been held that it is within the discretion of the court to consider it after a default has been set (see Emigrant Mtg. Corp v Lifshitz, supra).