Bank of America, N.A. v Thomas
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Attorneys and Parties
Brief Summary
Mortgage foreclosure litigation, specifically whether the lender strictly complied with Real Property Actions and Proceedings Law (RPAPL) 1304 [New York's pre-foreclosure notice statute requiring a 90-day notice before certain residential foreclosure actions].
The Supreme Court, Queens County, granted the plaintiff lender's motion for leave to renew its opposition to the defendants' prior renewal motion and, upon renewal, vacated its February 7, 2023 order that had previously granted the defendants renewal and denied the lender's summary judgment motion.
The Appellate Division modified the July 12, 2024 order by reinstating the defendants' successful renewal motion as to the lender's requests for summary judgment, striking the answers, and an order of reference, and by restoring the denial of those branches of the lender's prior motion.
Although the plaintiff properly obtained renewal under Civil Practice Law and Rules (CPLR) 2221(e)(2) [rule governing motions for leave to renew based on a change in law or new facts] because the Court of Appeals' Kessler decision changed the governing law, the defendants still raised a triable issue of fact that the RPAPL 1304 notice used outdated statutory language and may not have strictly complied with the version in effect when the foreclosure action was commenced in 2018.
Background
Bank of America commenced a foreclosure action in July 2018 against James Thomas, Delories Thomas, and others. In August 2019, the bank moved for summary judgment against the Thomases, to strike their answers, for an order of reference, and to amend the caption. The Supreme Court granted that motion in January 2022. After the Appellate Division's then-controlling decision in Bank of Am., N.A. v Kessler, the defendants moved in June 2022 for leave to renew their opposition, arguing defects in the RPAPL 1304 notice. The Supreme Court granted renewal in February 2023, vacated its January 2022 order, and denied the bank's motion. Then, after the Court of Appeals reversed Kessler, the bank moved in June 2023 for leave to renew its opposition to the defendants' renewal motion.
Lower Court Decision
In the order entered July 12, 2024, the Supreme Court granted the bank's renewal motion and, upon renewal, vacated the February 7, 2023 order. The practical effect was to deny the defendants' prior motion for leave to renew and to undo the earlier denial of the bank's summary judgment-related relief.
Appellate Division Reversal
The Appellate Division dismissed the appeal only as to the branch concerning amendment of the caption because the defendants were not aggrieved under CPLR 5511 [statute limiting appeals to aggrieved parties]. Otherwise, it modified the order. The court agreed that the plaintiff showed a sufficient change in law to support renewal, but held that, on renewal, the Supreme Court should have adhered to its February 7, 2023 determination denying summary judgment, striking of the answers, and an order of reference. The appellate court found that the lender made a prima facie showing of mailing compliance through copies of the 90-day notices, certified mail receipts, and an officer's affidavit describing mailing practices, but the defendants raised a triable issue of fact because the notice did not establish strict compliance with the amended RPAPL 1304 language in effect when the action was filed in 2018, including the added language about the borrowers' right to remain in the home until a court order.
Legal Significance
The decision underscores two recurring foreclosure principles. First, a later appellate or Court of Appeals decision can constitute a sufficient change in law to permit renewal under CPLR 2221(e)(2). Second, even where a lender proves mailing procedures, it must also show strict substantive compliance with the exact RPAPL 1304 notice language in effect when the action is commenced. Use of an older notice form can defeat summary judgment if the lender could have sent a new compliant notice before filing suit.
A foreclosure plaintiff may obtain renewal when governing case law changes, but renewal will not save a summary judgment motion if the borrower shows a factual issue that the RPAPL 1304 notice used outdated statutory language and therefore may not have strictly complied with the statute in force at the time the action began.