Deutsche Bank National Trust Company v Williams
Attorneys and Parties
Brief Summary
Mortgage foreclosure compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 [requires that at least 90 days before commencing a mortgage foreclosure, the lender, assignee, or servicer send a pre-foreclosure notice by registered or certified mail and also by first-class mail to the borrower’s last known address and the property address; strict compliance is a condition precedent], and proof of standing at commencement based on possession or assignment of the note.
Denied plaintiff’s summary judgment on the complaint, order of reference, and leave to amend the caption to delete John Doe defendants for failure to establish compliance with RPAPL 1304; granted summary judgment dismissing defendant’s affirmative defenses and counterclaims.
Reinstated the defendant’s lack-of-standing affirmative defense and granted leave to amend the caption to delete the John Doe defendants.
Plaintiff’s mailing proof under RPAPL 1304 was deficient because the affiant (from a law firm for a prior servicer) lacked an adequate foundation and did not attach the relied-upon business records; the affidavit also conflicted with the attached 90-day notice. On standing, the servicer’s affidavit referenced records but the attached documents did not establish possession of the note at commencement; a foundational affidavit alone is insufficient. Deletion of John Doe defendants should have been granted under established precedent.
Background
Plaintiff commenced a mortgage foreclosure against Delmore Williams regarding Brooklyn property. Williams answered with defenses and counterclaims, including lack of standing. Plaintiff moved for summary judgment on the complaint, dismissal of defenses and counterclaims, an order of reference, and to amend the caption to remove John Doe defendants. Williams opposed, arguing noncompliance with RPAPL 1304.
Lower Court Decision
The Supreme Court, Kings County, granted plaintiff’s motion to dismiss Williams’s affirmative defenses and counterclaims, but denied summary judgment on the complaint, denied an order of reference, and denied leave to amend the caption to delete John Doe defendants based, among other things, on plaintiff’s failure to prove RPAPL 1304 compliance.
Appellate Division Reversal
Modified: (1) granted leave to amend the caption to delete John Doe defendants; and (2) denied plaintiff’s request to dismiss Williams’s fourth affirmative defense (lack of standing). Otherwise affirmed the denial of summary judgment on the complaint and order of reference because plaintiff failed to make a prima facie showing of strict compliance with RPAPL 1304. The court held the law firm employee’s affidavit did not sufficiently establish the relationship to or knowledge of the prior servicer’s mailing procedures, the records relied upon were not attached, and the documents conflicted with the affidavit. On standing, the attached records did not show possession of the note at commencement; the business record itself, not the affidavit, must prove the matter asserted. One bill of costs was awarded to Williams.
Legal Significance
Reinforces that strict compliance with RPAPL 1304’s dual-mailing requirement is a condition precedent and must be proven with either actual mailing proof or a properly supported description of standard mailing procedures by someone with personal knowledge, accompanied by the business records relied upon. Affidavits that reference but do not attach the records, or that contain contradictions, are insufficient. For standing, a plaintiff must prove it held or was assigned the note at commencement through admissible records (e.g., the endorsed note or written assignment); a conclusory servicer affidavit is not enough. Routine deletion of John Doe defendants is appropriate when no unknown occupants or parties remain.
In New York mortgage foreclosures, lenders must strictly document RPAPL 1304 mailings with competent, record-supported evidence and independently prove note possession or assignment at commencement; otherwise, summary relief will be denied and standing defenses may be reinstated, though captions can be cleaned up to remove John Doe defendants.