Deutsche Bank National Trust Company v. Mone
Attorneys and Parties
Brief Summary
Residential mortgage foreclosure—whether the plaintiff proved strict compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 [90-day pre-foreclosure notice must be sent by certified and first-class mail to the borrower at the property and any other address of record] and preservation of appellate arguments.
Granted the plaintiff summary judgment, struck defendant's answer and affirmative defenses, issued an order of reference, and later confirmed the referee's report and entered a judgment of foreclosure and sale.
Nothing; the order and judgment of foreclosure and sale were affirmed insofar as appealed from.
The appellant’s RPAPL 1304 service argument was raised for the first time on appeal and thus unpreserved; the RPAPL 1301(3) [limits concurrent actions to recover the same mortgage debt without leave of court] argument was likewise unpreserved. Remaining arguments were rejected.
Background
The plaintiff commenced a foreclosure action against James F. Mone regarding property in Garden City. Mone answered, asserting affirmative defenses including noncompliance with RPAPL 1304. The plaintiff moved for summary judgment, to strike the answer and affirmative defenses, and for an order of reference. The Supreme Court, Nassau County, granted the motion in two April 9, 2018 orders and later, on July 20, 2022, confirmed the referee’s report and entered an order and judgment of foreclosure and sale. Mone appealed.
Lower Court Decision
The Supreme Court found the plaintiff had established compliance with RPAPL 1304, granted summary judgment against Mone, struck his answer and affirmative defenses, appointed a referee to compute amounts due, then confirmed the computation and ordered a foreclosure sale.
Appellate Division Reversal
Affirmed. The majority held the RPAPL 1304 strict-compliance-by-service argument was not preserved because it was raised for the first time on appeal and did not present a pure question of law on the face of the record. RPAPL 1301(3) was likewise unpreserved. A dissent (Wooten, J.) would reverse, reasoning the issue was properly before the court and the plaintiff failed to make a prima facie showing of strict compliance with RPAPL 1304 because its affidavits did not demonstrate personal mailing knowledge, standard office mailing procedures, or attach business records/return receipts proving actual mailings.
Legal Significance
Reinforces that challenges to RPAPL 1304 compliance must be preserved in the trial court; strict-compliance mailing issues are generally not reviewable for the first time on appeal unless they present a pure question of law apparent on the face of the record. Clarifies the limits of HSBC v. Ozcan and Deutsche Bank v. Dagrin in the preservation context. The dissent highlights the evidentiary showing required to prove RPAPL 1304 compliance (affidavits with personal knowledge or detailed mailing procedures and supporting business records).
In New York foreclosure actions, defendants must preserve RPAPL 1304 challenges at the motion stage, and plaintiffs should substantiate RPAPL 1304 compliance with competent mailing proof (standard office procedure or actual mailing evidence with supporting business records), or risk reversal where preserved.