Bank of America, N.A. v. Keefer
Attorneys and Parties
Brief Summary
Residential mortgage foreclosure—strict compliance with pre-foreclosure 90-day notice requirements and timing for default judgments during mandatory settlement conferences.
Granted summary judgment to James E. Keefer, Jr. dismissing the complaint for failure to comply with RPAPL 1304; denied plaintiff’s summary judgment; denied plaintiff’s motion for default judgment and order of reference against Lynn Marie Keefer; upon reargument, adhered and sua sponte dismissed as abandoned under CPLR 3215(c).
The sua sponte CPLR 3215(c) abandonment dismissal and the denial of leave to enter a default judgment against Lynn Marie Keefer were reversed; leave to enter a default judgment was granted and the abandonment dismissal was deleted.
The RPAPL 1304 [pre-foreclosure 90-day notice sent by registered or certified and also first-class mail, in a separate envelope from any other notice] was not satisfied because a single envelope was jointly addressed to both borrowers. However, CPLR 3408(n) [motions held in abeyance while the settlement conference process is ongoing] tolled the CPLR 3215(c) [mandatory dismissal if plaintiff fails to take proceedings for default judgment within one year unless sufficient cause is shown] one-year period, and plaintiff timely moved after the conferences ended and submitted proof of service, facts constituting the claim, and default.
Background
Plaintiff commenced a 2013 foreclosure action on West Babylon property against James E. Keefer, Jr. and Lynn Marie Keefer. James answered and raised RPAPL 1304 defenses; Lynn defaulted. Plaintiff’s 2015 and 2017 summary judgment motions were denied for failing to prove RPAPL 1304 compliance. In 2023, James moved for summary judgment dismissing; plaintiff cross-moved for summary judgment, default judgment against Lynn, and an order of reference.
Lower Court Decision
By August 21, 2023 order, the court granted James’s summary judgment dismissing the complaint against him for RPAPL 1304 noncompliance and denied plaintiff’s summary judgment. By October 5, 2023 order, it denied default judgment and an order of reference against Lynn. On February 20, 2024, upon reargument, it adhered to those denials and sua sponte dismissed claims against Lynn as abandoned under CPLR 3215(c).
Appellate Division Reversal
The court affirmed the August 21, 2023 order as to James, dismissed the appeal from the October 5, 2023 order as superseded, and modified the February 20, 2024 order by deleting the sua sponte CPLR 3215(c) abandonment dismissal and granting, upon reargument, plaintiff’s motion for leave to enter a default judgment against Lynn. One bill of costs was awarded to James.
Legal Significance
Confirms strict RPAPL 1304 compliance: a 90-day notice must be separately mailed to each borrower, and a single jointly addressed envelope is insufficient. Clarifies that CPLR 3408(n) tolls CPLR 3215(c)’s one-year default-judgment deadline while foreclosure settlement conferences are pending, preventing abandonment where a motion is made within the tolled period and supported by required proof.
In New York residential foreclosures, lenders must send separate RPAPL 1304 notices to each borrower, but the CPLR 3215(c) one-year period to seek a default judgment is tolled during CPLR 3408 settlement conferences.