Citibank, N.A. v. Yanling Wu
Categories
Attorneys and Parties
Brief Summary
Mortgage foreclosure; whether the lender strictly complied with RPAPL 1304(1) [requires that at least ninety days before a lender, assignee, or mortgage loan servicer commences legal action against the borrower, it must give notice to the borrower] before filing suit.
The Supreme Court granted Citibank summary judgment against Yanling Wu and Perry Sing, struck their answer, issued an order of reference, and denied their cross-motion for summary judgment dismissing the complaint.
The Appellate Division reversed the order insofar as appealed from, denied Citibank's motion for summary judgment, to strike the answer, and for an order of reference, and granted the defendants' cross-motion dismissing the complaint against them.
Citibank failed to raise a triable issue of fact after the defendants showed noncompliance with RPAPL 1304. Although notices were mailed, the bank did not show that each borrower was sent a notice individually addressed to that borrower, which strict compliance requires. The defendants had not waived the defense because it may be raised any time before entry of a judgment of foreclosure and sale.
Background
In 2006, Yanling Wu executed a $580,000 note secured by a mortgage on Bayside property signed by Wu and Perry Sing. Citibank began the foreclosure action in August 2016. In an earlier appeal, the Appellate Division had already reversed a foreclosure judgment because Citibank failed to prove the defendants' default, even though it had shown standing and compliance with other foreclosure requirements. After that remittal, Citibank again moved in 2023 for summary judgment and related relief, while the defendants cross-moved to dismiss based on lack of compliance with RPAPL 1304(1) [requires that at least ninety days before a lender, assignee, or mortgage loan servicer commences legal action against the borrower, it must give notice to the borrower].
Lower Court Decision
The Supreme Court, Queens County, granted Citibank summary judgment on the complaint against Wu and Sing, struck their answer, and issued an order of reference. It also denied the defendants' cross-motion for summary judgment dismissing the complaint.
Appellate Division Reversal
The Appellate Division dismissed the appeal from the decision because no appeal lies from a decision, but reversed the order insofar as appealed from. It held that Citibank did not prove strict compliance with RPAPL 1304 because it failed to show that the 90-day notices were individually addressed to each defendant. As a result, Citibank was not entitled to summary judgment or an order of reference, and the defendants were entitled to summary judgment dismissing the complaint as against them.
Legal Significance
This decision reinforces that strict compliance with RPAPL 1304 is a condition precedent to a residential mortgage foreclosure action. Proof that notices were mailed is not enough if the lender cannot show that each borrower received a separately addressed notice. The ruling also confirms that a borrower may raise an RPAPL 1304 noncompliance defense at any time before entry of a judgment of foreclosure and sale.
In New York residential foreclosure cases, lenders must be able to prove that each borrower was sent a separately addressed 90-day RPAPL 1304 notice before suit; failure to do so can result in dismissal even late in the case.