Ibrahim & Berg, New York, NY (Ben Z. Raindorf of
counsel), for appellant.
REINALDO E. RIVERA, J.P. JEFFREY A. COHEN SYLVIA O.
HINDS-RADIX VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
from an order of the Supreme Court, Queens County (Frederick
D. R. Sampson, J.), entered April 12, 2016. The order denied
the plaintiff's motion, inter alia, for summary judgment
on the complaint and for an order of reference.
that the order is affirmed, without costs or disbursements.
March 19, 2007, the defendant Cecil Wheatley (hereinafter the
defendant) executed a note in the sum of $242, 000 in favor
of Bravo Credit. The note was secured by a mortgage on
residential property located in Queens County. In January
2010, Mortgage Electronic Registration Systems, Inc.
(hereinafter MERS), as nominee for Bravo Credit, assigned the
mortgage to the plaintiff.
March 2011, the plaintiff commenced this action against,
among others, the defendant. The defendant served an answer
in which he asserted various affirmative defenses, including
that the plaintiff lacked standing and that the plaintiff
failed to comply with RPAPL 1304, and two counterclaims. The
plaintiff moved, inter alia, for summary judgment on the
complaint and for an order of reference. The defendant did
not oppose the motion. By order entered April 12, 2016, the
Supreme Court denied the motion. The plaintiff appeals, and
to the Supreme Court's determination, the plaintiff
established, prima facie, that it had standing to commence
this action. A plaintiff establishes its standing in a
mortgage foreclosure action by demonstrating that when the
action was commenced, it was either the holder or assignee of
the underlying note (see Aurora Loan Servs., LLC v
Taylor, 25 N.Y.3d 355, 361-362; U.S. Bank, N.A. v
Noble, 144 A.D.3d 786, 787; U.S. Bank, N.A. v
Collymore, 68 A.D.3d 752, 753-754). "Either a
written assignment of the underlying note or the physical
delivery of the note prior to the commencement of the
foreclosure action is sufficient to transfer the obligation,
and the mortgage passes with the debt as an inseparable
incident" (Deutsche Bank Trust Co. Ams. v
Garrison, 147 A.D.3d 725, 726; see U.S. Bank N.A. v
Saravanan, 146 A.D.3d 1010, 1011; Deutsche Bank
Natl. Trust Co. v Logan, 146 A.D.3d 861, 862).
the plaintiff established, prima facie, its standing as the
holder of the note by demonstrating that the note was in its
possession at the time it commenced the action, as evidenced
by its attachment of the note, which contained an endorsement
in blank by Bravo Credit, the original lender, to the summons
and complaint at the time the action was commenced (see
U.S. Bank N.A. v Sabloff, 153 A.D.3d 879; Deutsche
Bank Natl. Trust Co. v Carlin, 152 A.D.3d 491, 493;
Wells Fargo Bank, N.A. v Thomas, 150 A.D.3d 1312,
1313; U.S. Bank N.A. v Saravanan, 146 A.D.3d at
1011; Deutsche Bank Natl. Trust Co. v Logan, 146
A.D.3d at 862; JPMorgan Chase Bank, N.A. v
Weinberger, 142 A.D.3d 643, 645).
the Supreme Court properly determined that the plaintiff
failed to establish, prima facie, its compliance with RPAPL
1304. RPAPL 1304(1) provides that, "at least ninety days
before a lender, an assignee or a mortgage loan servicer
commences legal action against the borrower, including
mortgage foreclosure, such lender, assignee or mortgage loan
servicer shall give notice to the borrower." RPAPL
1304(1) sets forth the requirements for the content of such
notice and further provides that such notice must be sent by
registered or certified mail and by first-class mail to the
last known address of the borrower (see RPAPL
1304). "[P]roper service of RPAPL 1304 notice on the
borrower or borrowers is a condition precedent to the
commencement of a foreclosure action, and the plaintiff has
the burden of establishing satisfaction of this
condition" (Aurora Loan Servs., LLC v Weisblum,
85 A.D.3d 95, 106; see CitiMortgage, Inc. v Pappas,
147 A.D.3d 900, 901; Deutsche Bank Natl. Trust Co. v
Spanos, 102 A.D.3d 909, 910).
to the plaintiff's contention, since the defendant raised
the issue of compliance with RPAPL 1304 as an affirmative
defense in his answer, the plaintiff was required to make a
prima facie showing of compliance with RPAPL 1304 (cf.
Flagstar Bank, FSB v Jambelli, 140 A.D.3d 829, 830;
U.S. Bank N.A. v Carey, 137 A.D.3d 894, 896). The
plaintiff failed to make the requisite showing. In support of
its motion, the plaintiff submitted the affidavit of Sherry
Benight, an officer of Select Portfolio Servicing, Inc.
(hereinafter SPS), the loan servicer, along with two copies
of a 90-day notice addressed to the defendant and a proof of
filing statement pursuant to RPAPL 1306 from the New York
State Banking Department. While mailing may be proved by
documents meeting the requirements of the business records
exception" to the hearsay rule, Benight, in her
affidavit, did not aver that she was familiar with the
plaintiff's mailing practices and procedures, and
therefore did not establish proof of a standard office
practice and procedure designed to ensure that items are
properly addressed and mailed (CitiMortgage, Inc. v
Pappas, 147 A.D.3d at 901; see Wells Fargo Bank,
N.A. v Trupia, 150 A.D.3d at 1050). Moreover, the
plaintiff failed to demonstrate, prima facie, that the
notices included a list of five housing counseling agencies,
as required by the statute (see RPAPL 1304).
Although Benight stated in her affidavit that the notices
included such a list, the copies of the notices submitted
merely included information about contacting a hotline that
would provide "free personalized advice from housing
counseling agencies certified by the U.S. Department of
Housing and Urban Development."
the plaintiff failed to demonstrate its compliance with RPAPL
1304, the Supreme Court properly denied its motion for
summary judgment (see Wells Fargo Bank, N.A. v
Trupia, 150 A.D.3d at 1051; Citibank, N.A. v