Wilmington Savings Fund Society, FSB v Calhoun
Attorneys and Parties
Brief Summary
Residential mortgage foreclosure—whether the lender proved strict compliance with RPAPL 1304 [requires a lender/assignee/servicer to give a 90-day pre-foreclosure notice and to send it by registered or certified mail and also by first-class mail to the borrower’s last known address before commencing foreclosure].
The Supreme Court granted the lender summary judgment, struck the borrower’s answer, issued an order of reference, and later entered a judgment of foreclosure and sale (JFS) after confirming the referee’s report.
The JFS was reversed; the lender’s motion to confirm the referee’s report and for a JFS was denied; and the prior grants of summary judgment, striking the answer, and issuing an order of reference were denied and the 2019 orders modified accordingly.
The lender failed to make a prima facie showing of strict compliance with RPAPL 1304 because it provided neither proof of actual mailings (e.g., affidavits of mailing or signed return receipts) nor competent evidence of a standard office mailing procedure; its affiant merely recited statutory mailing requirements.
Background
The lender commenced foreclosure in July 2018. The borrower answered, asserting, among other defenses, noncompliance with RPAPL 1304. In 2019, the Supreme Court granted the lender summary judgment, struck the borrower’s answer, and issued an order of reference. In January 2023, relying on the Appellate Division’s then-governing Kessler decision, the court granted the borrower leave to renew and, upon renewal, denied the lender’s motion. After the Court of Appeals reversed Kessler, the Supreme Court in August 2023 granted the lender leave to renew and, in effect, denied the borrower’s renewal motion. In November 2024, the court confirmed the referee’s report and entered a judgment of foreclosure and sale. The borrower appealed.
Lower Court Decision
The Supreme Court (Queens County) ultimately granted the lender’s motion to confirm the referee’s report and entered a judgment of foreclosure and sale, after reinstating the lender’s prior summary judgment, striking the borrower’s answer, and issuing an order of reference based on the Court of Appeals’ reversal of Kessler.
Appellate Division Reversal
The Appellate Division dismissed the appeal from the August 1, 2023 order as subsumed by the final judgment (Matter of Aho) and noted the issues were reviewable on the appeal from the JFS under CPLR 5501(a)(1) [scope of review on appeal from a final judgment]. It reversed the JFS, denied the lender’s motion to confirm and for a JFS, denied the lender’s prior motions for summary judgment, to strike the answer, and for an order of reference, modified the 2019 orders accordingly, and awarded costs to the borrower.
Legal Significance
The decision reinforces that strict compliance with RPAPL 1304 remains a condition precedent to foreclosure and that lenders must submit either proof of actual mailings or a detailed, sworn description of standard office mailing practices ensuring proper addressing and mailing; boilerplate recitations of statutory requirements are insufficient. If the movant fails to meet its prima facie burden, the motion must be denied regardless of the opponent’s papers (Winegrad).
Without concrete proof of RPAPL 1304 mailings or a competent mailing protocol, a lender cannot secure summary judgment or a foreclosure judgment, even after other precedent shifts.