Bank of America, N.A. v. Marquez
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Attorneys and Parties
Brief Summary
Residential mortgage foreclosure; whether the lender strictly complied with the pre-foreclosure notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304(1) [requires a 90-day notice before foreclosure and mandates that the notice, among other things, state the durational extent and dollar amount of the alleged payment default].
The Supreme Court, Suffolk County, granted the lender summary judgment against Marquez, struck his answer, and issued an order of reference.
The Appellate Division reversed the order insofar as appealed from and denied the branches of the lender's motion seeking summary judgment, to strike Marquez's answer, and for an order of reference.
The lender failed to establish prima facie strict compliance with RPAPL 1304 because the 90-day notice stated the loan was 33 days in default as of August 3, 2018, implying a July 1, 2018 default date, while the complaint alleged a default date of August 1, 2018. That discrepancy created a triable issue of fact as to whether the notice was facially defective.
Background
Bank of America, N.A. commenced a foreclosure action in January 2019 concerning residential property in Selden, alleging that Victor Alfaro Marquez defaulted on the loan on August 1, 2018. Marquez answered and asserted affirmative defenses, including that the bank failed to comply with RPAPL 1304's 90-day notice requirement.
Lower Court Decision
The Supreme Court, Suffolk County, accepted the bank's proof and granted the motion for summary judgment on the complaint insofar as asserted against Marquez, struck his answer, and issued an order of reference.
Appellate Division Reversal
The Appellate Division, Second Department, reversed insofar as appealed from, holding that the bank did not eliminate triable issues of fact regarding strict compliance with RPAPL 1304. Because the notice listed a default timeline inconsistent with the default date alleged in the complaint, the bank failed to make its prima facie showing, and its requested relief had to be denied regardless of the opposition papers.
Legal Significance
This decision reinforces that in New York residential foreclosure cases, strict compliance with RPAPL 1304 is a condition precedent that must be proven by the plaintiff when raised by the borrower. Even a discrepancy in the stated default date may render a 90-day notice facially defective and defeat summary judgment.
A foreclosure plaintiff cannot obtain summary judgment if its RPAPL 1304 notice conflicts with the complaint about the date of default; accuracy and strict statutory compliance are essential.