Wilmington Savings Fund Society v Rodriguez
Categories
Attorneys and Parties
Brief Summary
Mortgage foreclosure; whether the plaintiff strictly complied with Real Property Actions and Proceedings Law (RPAPL) 1304 [requires a lender, assignee, or mortgage loan servicer to give the borrower at least 90 days' notice before commencing a foreclosure action, sent by registered or certified mail and also by first-class mail to the borrower's last known address and the property].
The Supreme Court, Richmond County, granted the plaintiff summary judgment against Tomas Rodriguez, struck his affirmative defense alleging noncompliance with RPAPL 1304, and issued an order of reference appointing a referee to compute the amount due.
The Appellate Division reversed the order insofar as appealed from and denied the plaintiff's requests for summary judgment against Rodriguez, to strike the RPAPL 1304 affirmative defense, and for an order of reference.
The plaintiff failed to make a prima facie showing of strict compliance with RPAPL 1304 because its affidavits did not establish the mailing procedures of the third-party vendor, LenderLive, LLC, that allegedly mailed the notices, and did not show that LenderLive's records were incorporated into or routinely relied upon in the plaintiff's business records.
Background
The plaintiff brought a foreclosure action concerning Staten Island property. Tomas Rodriguez answered and asserted, among other defenses, that the plaintiff failed to comply with RPAPL 1304. In support of summary judgment, the plaintiff submitted affidavits from employees of Bank of America, N.A., a prior loan servicer, and Carrington Mortgage Services, LLC, the current loan servicer, stating that business records showed 90-day notices were sent by certified and first-class mail to the property. Those affidavits relied on records connected to LenderLive, LLC, the vendor that apparently mailed the notices.
Lower Court Decision
The Supreme Court held in the plaintiff's favor by granting summary judgment on the complaint insofar as asserted against Rodriguez, striking his affirmative defense based on RPAPL 1304, and granting an order of reference with appointment of a referee to compute the amount due.
Appellate Division Reversal
The Appellate Division, Second Department, reversed insofar as appealed from. It held that strict compliance with RPAPL 1304 is a condition precedent to foreclosure and that the plaintiff's proof was insufficient. Although the affiants described their own companies' record-keeping practices, neither stated familiarity with LenderLive's standard office mailing procedures. The affidavits also failed to explain the relationship between the plaintiff or its servicers and LenderLive, or to establish that LenderLive's records were incorporated into and routinely relied upon by the plaintiff. Because the plaintiff failed to meet its prima facie burden, the motion should have been denied regardless of the defendant's opposition.
Legal Significance
This decision reinforces that, in New York foreclosure actions, a plaintiff must strictly prove compliance with RPAPL 1304 before obtaining summary judgment. When mailing is performed by a third-party vendor, the plaintiff must provide admissible proof of that vendor's standard mailing procedures or otherwise establish proper business-record foundation showing incorporation and routine reliance. General assertions from servicer employees about reviewed records are not enough if they do not connect the servicer's knowledge to the vendor's actual mailing practices.
A foreclosure plaintiff cannot win summary judgment on RPAPL 1304 compliance by submitting servicer affidavits that merely reference vendor-generated mailing records; it must directly establish the third-party mailer's procedures and the admissibility of those records.