Deutsche Bank National Trust Company v Benson
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Attorneys and Parties
Brief Summary
Mortgage foreclosure procedure and proof of compliance with RPAPL 1304 [requires a lender, assignee, or mortgage loan servicer to give the borrower at least 90 days' notice before commencing a foreclosure action, and to send that notice by registered or certified mail and also by first-class mail to the borrower's last known address and the mortgaged residence].
The Supreme Court, Westchester County, granted the plaintiff summary judgment against Andrew Benson, granted an order of reference, and appointed a referee to compute the amount due.
The Appellate Division reversed both orders insofar as appealed from and denied the branches of the plaintiff's motion seeking summary judgment against Benson and an order of reference.
Although the plaintiff's later affidavit was facially sufficient to show a standard mailing procedure, Benson raised a triable issue of fact by pointing to a contradiction between that affidavit and an earlier affidavit submitted by the plaintiff about who actually mailed the RPAPL 1304 notices. Plaintiff's counsel's reply affirmation, lacking personal knowledge of the servicer's mailing practices, was not enough to reconcile the discrepancy or establish strict compliance.
Background
The plaintiff began this foreclosure action in March 2017 concerning property in North Salem. In an earlier 2023 summary judgment motion, the plaintiff submitted an affidavit from Nationstar Mortgage, LLC servicer employee Britney Fisher stating that the RPAPL 1304 notices were mailed by third-party vendor LenderLive, LLC. After Benson argued that Fisher lacked the proper foundation because she worked for Nationstar rather than LenderLive, the plaintiff withdrew that motion. The plaintiff later renewed its motion and submitted a new affidavit from Nationstar employee Takesha Bryan, who stated that Nationstar employees, not LenderLive, mailed the notices and described Nationstar's standard office mailing procedures. Benson opposed, arguing that the new affidavit directly contradicted the first one and created a factual issue as to whether the statutory pre-foreclosure notices were properly mailed.
Lower Court Decision
The lower court accepted the plaintiff's renewed proof, granted summary judgment on the complaint insofar as asserted against Benson, granted an order of reference, and in a second order appointed a referee to compute the sums due under the mortgage.
Appellate Division Reversal
The Appellate Division held that the Bryan affidavit, together with the attached 90-day letters and comment log, was sufficient in the first instance to show a standard office mailing procedure. However, the contradiction between Bryan's affidavit and the previously submitted Fisher affidavit raised a triable issue of fact regarding compliance with RPAPL 1304. Because strict compliance with RPAPL 1304 is a condition precedent to foreclosure, and because the plaintiff relied only on counsel's reply affirmation without personal knowledge to explain the inconsistency, the plaintiff failed to eliminate factual issues. The court therefore reversed and denied summary judgment and the order of reference.
Legal Significance
This decision reinforces that strict compliance with RPAPL 1304 is mandatory in New York foreclosure cases and that a plaintiff's proof must be internally consistent. Even where one affidavit adequately describes a standard mailing procedure, a conflicting affidavit previously submitted by the same plaintiff can create a triable issue of fact. The case also underscores that an attorney affirmation without personal knowledge cannot cure evidentiary inconsistencies about mailing practices.
In a foreclosure action, a lender seeking summary judgment must present consistent, competent evidence proving RPAPL 1304 compliance. If the lender's own affidavits conflict about who mailed the 90-day notices, summary judgment and an order of reference should be denied.