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CIT Bank, N.A. v. Valerio

United States District Court, E.D. New York

January 8, 2020

CIT BANK, N.A., Plaintiff,
v.
CARMEN M. VALERIO, SAMUEL OJEDA, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and HOGAR MORTGAGE AND FINANCIAL SERVICE INC., Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          Denis R. Hurley, United States District Judge

         Presently before the Court are Plaintiff's objections to the Report and Recommendation of Magistrate Judge Steven I. Locke, dated October 29, 2019, (the 2019 R&R”) recommending that the renewed motion[1] by plaintiff for summary judgment against Defendants Carmen M. Valerio and Samuel Ojeda (“Defendants”) be denied on the ground that Plaintiff has failed to establish as a matter of law that it complied with the notice requirements of NY RPAPL §1304, which requirement is a condition precedent to commencement of a foreclosure action in New York.

         Background

         Plaintiff commenced this action on December 1, 2016, alleging that it is the holder and owner of a Note and Mortgage executed by Defendants on August 30, 2006 and that Defendants defaulted by failing to make the payments due January 1, 2016, and thereafter. According to Plaintiff the 90-day pre-foreclosure notice required by RPAPL § 1304 “was sent to Carmen M. Valerio via first class and certified mail to 567 Bayview Avenue, Inwood, NY 11096 and Samuel Ojeda via first class and certified mail to 567 Bayview Avenue, Inwood, NY 11096. The RPAPL §1304 Notice was mailed on August 11, 2015 and listed at least five (5) housing counseling agencies. (Pl.'s 56.1 at ¶ 4.) In support of that mailing, plaintiff proffers two affidavits. With respect to the §1304 Notice, the affidavit by Caryn Edwards (the “Edwards Affidavit”) states as follows:

In compliance with RPAPL §1304, a 90 day pre-foreclosure notice (“90 Day Notice”) was sent to Carmen Valerio via first class and certified mail to 567 Bayview Ave, Inwood, NY 11096-1603 which is the Property Address and Samuel Ojeda via first class and certified mail to 567 Bayview Ave, Inwood, NY 11096-1603 which is the Property Address. The 90 Day Notice was mailed on August 12, 2015 and listed at least five housing counseling agencies. A copy of the 90 Day Notice and the affiliated certified mailing receipt is attached.”

(DE 52-1 at p. 10, 7 .)

         The affidavit of Tenisa Brooks (“Brooks Affidavit) repeats, word for word, the same statement with respect to the 90 Notice. (Id. at p. 7, ¶10.) Both affidavits also represent that plaintiff electronically filed the 90 day notice with the superintendent of Financial Services on August 12, 2015, as required by RPAPL § 1306(2). Id. at p. 7 ¶ 11 & p. 10 ¶ 8.).

         The Brooks Affidavit provides the following concerning Brooks' responsibilities:

In the regular performance of my job functions, I am familiar with business records maintained by Loancare, LLC for the purpose of servicing mortgage loans and I have personal knowledge of the operation of and the circumstances surrounding the preparation, maintenance, distribution, and retrieval of records in servicer's record keeping systems. These records (which include data compilations, electronically imaged documents and others) are made at or near the time by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records[]and are kept in the course of business activity conducted regularly by Loancare, LLC. It is the regular practice of Loancare, LLC mortgage servicing business to make these records. In connection with making this affidavit, I have acquired personal knowledge of the matters stated herein by examining the business records relating to the subject mortgage loan and/or confirm the information to the best of my knowledge, information and belief.

(Id. at p. 6, ¶ 2.)

         With respect to the mailing of the 90-day notices, the Brooks Affidavit states:

In compliance with RPAPL § 1304, a 90 day pre-foreclosure notice (“90 Day Notice”) was sent to Carmen M. Valerio via first class and certified mail to 567 Bayview Ave., Inwood NY 11096-16-3 which is the Property Address and Samuel Ojeda via first class and certified mail to 567 Bayview Ave., Inwood NY 11096-16-3 which is the Property Address. The 90 Day Notice was mailed on August 12, 2015 and listed at least five (5) housing counseling agencies. A copy of the 90 Day Notice and the affiliated certified mailing receipt is attached.

(Id. at p. 6, ¶ 10.) Attached to the Brooks Affidavit is listing of certified mailings for March 15, 2016 and includes unspecified mailing to Carmen Valerio and Samuel Ojeda on that date. Also attached are copies of certified envelopes addressed to Carmen Valerio and Samuel Ojeda that do not appear to have a mailing date but the U.S. Postal Services' “return to sender stamp” has a date of 4/24/2016. Finally, there is what appears to be a listing of all letters sent to Valerio. It is to the listing for August 11, 2015 that references “NY BREACH LETTER” that Plaintiff directs this Court's attention to in its objections, although this was not pointed out in its original papers.

         The ...


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