Wells Fargo Bank, N.A. v Ciurleo
Attorneys and Parties
Brief Summary
Residential mortgage foreclosure—compliance with pre-foreclosure notice requirements and proof of standing to foreclose.
Denied plaintiff’s motion for summary judgment, to strike answer and affirmative defenses, and for an order of reference, finding noncompliance with RPAPL 1304 due to an address discrepancy.
The Appellate Division struck the RPAPL 1304 affirmative defense, holding the plaintiff strictly complied with the statute.
Plaintiff’s servicer affidavit, USPS tracking, letter logs, and the borrower’s own admission proved the 90-day notices were mailed to the correct address; the differing address in the note was a typographical error. However, summary judgment was still properly denied due to triable issues of fact on standing created by a prior 2005 lost note affidavit and discrepancies regarding endorsement and possession.
Background
In 2003, Joseph Ciurleo executed a $569,600 note to FFFC secured by a Queens residence. He entered loan modification agreements in 2011 and 2018, then allegedly defaulted beginning May 1, 2018. In March 2019, Wells Fargo, as FFFC’s successor in interest, commenced foreclosure. Ciurleo answered with affirmative defenses including lack of standing and failure to comply with RPAPL 1304. Wells Fargo moved for summary judgment, to strike the answer and affirmative defenses, and for an order of reference. The Supreme Court denied the motion.
Lower Court Decision
The Supreme Court, Queens County, denied summary judgment, striking of defenses, and an order of reference, concluding the plaintiff failed to strictly comply with RPAPL 1304 because the 90-day notices bore a slightly different address than the property address listed in the note.
Appellate Division Reversal
Modified: RPAPL 1304 affirmative defense struck because plaintiff established strict compliance via servicer affidavit, standard mailing procedures, USPS records, and proof that the address variance was a typographical error, confirmed by the borrower. Otherwise affirmed: summary judgment and order of reference properly denied due to triable issues of fact on standing. Defendant’s opposition raised inconsistencies between a 2005 lost note affidavit (asserting the original note could not be located), the servicer’s assertion of continuous possession since 2003, and a 2007 foreclosure filing that included a copy of the note lacking the endorsement to Wells Fargo that appears on the copy attached to the complaint in this action; plaintiff offered no explanation for these discrepancies.
Legal Significance
Confirms that minor address discrepancies in loan documents do not defeat RPAPL 1304 compliance when evidence shows a typographical error and proper mailing to the correct address, and that strict compliance may be proven through standard office procedures and USPS documentation. Also underscores that borrowers can create triable issues of standing by pointing to prior lost note affidavits and endorsement/possession inconsistencies, requiring lenders to reconcile the documentary record to obtain summary judgment.
Lenders can satisfy RPAPL 1304 through competent mailing proof even where the note contains a typographical address error, but they must also provide coherent, reconciled evidence of note possession and endorsement history to establish standing on summary judgment.