FILED: ROCKLAND COUNTY CLERK 10/16/2018 03:10 PM
`NYSCEF DOC. NO. 74
`
`INDEX NO. 035574/2014
`
`RECEIVED NYSCEF: 10/16/2018
`
`time period
`the statutory
`To commence
`(CPLR
`for appeals as of right
`5513[a]),
`you are advised to serve a
`copy of this order, with notice of
`entry, upon all parties.
`DECISION
`& ORDER
`Index No: 035574/2014 E
`Motion Seq. No. 002
`
`SUPREME COURT: STATE OF NEW YORK
`COUNTY OF ROCKLAND
`--------------------~---------------X
`WILMINGTON SAVINGS FUND SOCIETY,
`FSB,d/b/a CHRISTIANA
`TRUST, NOT
`INDIVIDUALLY BUT AS TRUSTEE FOR
`PRETIUM MORTGAGE ACQUISITION
`TRUST,
`Plaintiff,
`
`-against-
`GERALD BEAUVAIS; SHIRLEY BEAUVAIS
`a/k/a SHIRLEY B. BEAUVAIS; CAPITAL
`ONE BANK (USA) NA; "JOHN DOES NUMBERS
`1-10" The names of these defendants
`being fictitious and unknown to
`plaintiff, the persons or parties
`intended being the tenants,
`occupants, persons or corporations,
`if any, having or claiming an
`interest in or lien upon the premises
`described in the complaint,
`Defendants.
`____________________________________
`
`X
`
`HON. ROLF M. THORSEN, A.J.S.C.
`d/b/a
`FSB,
`Society,
`Fund
`Plaintiff
`Wilmington
`Savings
`For Pretium
`but as Trustee
`Christiana
`Trust,
`not individually
`moved for an
`Mortgage Acquisition
`Trust (hereinafter "Plaintiff")
`order seeking the following relief: (1) pursuant to RPAPL ~1321 and
`CPLR S;3212 granting
`summary
`judgment
`in favor of Plaintiff
`and
`striking
`the answer
`of Defendants
`Gerald
`Beauvais
`and Shirley
`Beauvais (hereinafter "Defendants");
`(2) granting default judgment
`in favor of Plaintiff and against all non-appearing
`Defendants;
`(3)
`striking the fictitiously named Defendants and amending the caption
`to reflect same; (4) appointing a referee to compute the amounts
`due and owing to Plaintiff; and (5) granting such other and further
`relief as demanded in the complaint and as may be just and proper
`and equitable. The Court has considered the following papers on the
`motion:
`1.
`
`of Mark Golab, Esq., in
`Notice of Motion; Affirmation
`for
`Summary
`Judgment,
`Support
`of
`Plaintiff's
`Motion
`Affidavit
`of
`Selena
`Mitcherson,
`Memorandum
`of
`Law;
`
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`FILED: ROCKLAND COUNTY CLERK 10/16/2018 03:10 PM
`NYSCEF DOC. NO. 74
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`INDEX NO. 035574/2014
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`RECEIVED NYSCEF: 10/16/2018
`
`2.
`3.
`
`Proposed
`A-K;
`Exhibits
`to Motion,
`Papers
`Supporting
`Order; Affidavit
`of Service;
`Affirmation
`of Michael B. Specht, Esq., in Opposition;
`and
`Plaintiff's
`Reply Affirmation
`of Oxana Lukina, Esq. and
`Affidavit
`of Service.
`Upon reading the foregoing papers, it is hereby
`ORDERED that Plaintiff's motion for summary judgment is DENIED
`for the reasons set forth below.
`BACKGROUND:
`to
`25, 2007, Defendants executed and delivered
`On September
`Wells Fargo Bank, N.A, a note in the amount of $415,150.00,
`and a
`mortgage on the premises located at 8 Trinity Place, Hillcrest, NY
`10977 (Plaintiff's
`Exhibit A). In July 2010, Defendants
`entered
`into
`a
`loan
`modification
`agreement
`(Plaintiff's
`Exhibit
`B).
`According to Plaintiff, on November 1, 2013, Defendants defaulted
`in making the monthly payment due pursuant to the terms of the note
`and mortgage
`as modified,
`which default
`has not been cured. On
`August 12, 2014, the note and mortgage as modified were transferred
`and assigned
`to prior
`Plaintiff
`Citibank,
`N .A., as trustee
`for
`CMLTI Asset Trust ("Citibank")
`(Plaintiff's Exhibit C).
`Plaintiff
`According
`to Plaintiff,
`on July 2, 2014,
`prior
`Citibank
`sent
`Defendants,
`separately,
`a notice
`of default
`to
`Defendants and 90-day pre-foreclosure
`notices (Plaintiff's Exhibit
`D). Prior Plaintiff Citibank thereafter filed the instant mortgage
`foreclosure
`action
`on December
`10, 2014.
`On January
`12, 2015,
`Defendants Gerald Beauvais and Shirley Beauvais filed their answer,
`asserting ten affirmative defenses, including "fail[ure] to provide
`all predicate
`notices in violation of the applicable
`statute(s),
`including but not limited to RPAPL 1304 and RPAPL 1306" and lack of
`standing.
`Plaintiff previously moved for summary judgment, which motion
`was denied by Decision and Order of this Court (Thorsen, J.), filed
`and entered
`on July 25, 2017.
`See, Plaintiff's
`Exhibit
`I. In
`denying the prior motion, this Court cited Deutsche Bank Nat. Trust
`Co. v. Carlin, 152 A.D.3d 491 (2d Dept. 2017), wherein the Court
`found that Plaintiff had failed to demonstrate the admissibility of
`the records
`relied
`upon
`by the employee
`of the
`current
`loan
`servicer under the business records exception to the hearsay rule
`since the employee
`did not aver that he was personally
`familiar
`with the record keeping practices and procedures of the prior loan
`
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`FILED: ROCKLAND COUNTY CLERK 10/16/2018 03:10 PM
`NYSCEF DOC. NO. 74
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`INDEX NO. 035574/2014
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`RECEIVED NYSCEF: 10/16/2018
`
`servicer, who was the loan servicer at the time the notices were
`sent out and the action commenced. Id. at 493.
`motion.
`On February
`3, 2018,
`Plaintiff
`filed
`the instant
`Defendants
`have
`opposed
`the motion
`on the
`grounds
`that:
`(1)
`Plaintiff has failed to offer admissible
`evidence;
`(2) the RPAPL
`s1304 notice was a nullity; and (3) Plaintiff failed to comply with
`a condition precedent and to establish that it properly mailed the
`notice required by RPAPL s1304. In reply, Plaintiff argues, inter
`alia, that the evidence
`presented
`is admissible
`and established
`sufficient proof of the facts and that it complied with RPAPL s1304
`and condition precedent
`requirements.
`DISCUSSION:
`action alleges in
`in a mortgage foreclosure
`When a plaintiff
`its complaint that it has served a notice pursuant to RPAPL s1304,
`the plaintiff must, in its motion for summary judgment, "prove its
`allegation
`by
`tendering
`sufficient
`evidence
`demonstrating
`the
`absence of material
`issues as to its strict compliance with RPAPL
`1304" to meet its prima facie burden. Jp Morgan Chase Bank, N.A. v.
`Kutch, 142 A. D.3d 536, 537 (2d Dept. 2016). In order to do so,
`plaintiff must demonstrate proper service of the RPAPL s1304 notice
`containing
`the
`statutorily-mandated
`content
`as
`a
`condition
`precedent
`to the commencement
`of the foreclosure
`action.
`See,
`Aurora Loan Services, LLC v. Weisblum,
`85 A.D.3d
`95, 103-107
`(2d
`Dept. 2011).
`10, 2014, reveals
`filed on December
`complaint,
`Plaintiff's
`that Plaintiff alleged compliance with RPAPL s1304. See, Complaint
`at ~ FOURTH. Thus, Plaintiff is required to prove this allegation
`in its motion for summary judgment in order to meet its prima facie
`burden.
`Plaintiff
`s1304,
`RPAPL
`with
`compliance
`its
`establish
`To
`of Ms. Selena Mitcherson,
`submi tted the Affidavit
`in which she
`states: "[a]ccording
`to the business records that I have reviewed,
`which
`were
`transferred
`in the ordinary
`course
`of business
`by
`Citibank, the prior servicer of the Subject Loan, and which records
`have been incorporated
`into Rushmore's
`records 'for the Subject
`Loan, my review of such records reveals the following regarding the
`sending of the RPAPL s1304 required notice
`(preforeclosure
`90-day
`notice): On July 2, 2014, which was at least ninety (90) days prior
`to commencement of this action and in accordance with RPAPL s1304,
`90-day
`pre-foreclosure
`notices
`were
`forwarded
`separately
`by
`certified mail and also by first-class mail to the Defendants,
`in
`separate envelopes,
`at 8 Trinity Place, Hillcrest,
`NY 10977, the
`Premises which is the subject of this action." Mitcherson Affidavit
`
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`FILED: ROCKLAND COUNTY CLERK 10/16/2018 03:10 PM
`NYSCEF DOC. NO. 74
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`INDEX NO. 035574/2014
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`RECEIVED NYSCEF: 10/16/2018
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`at ~~ 15-16. Notably, Ms. Mitcherson did not allege that she was
`personally
`familiar
`with
`the prior
`servicer
`Citibank' s record
`keeping practices and procedures or its procedures
`for mailing out
`default notices. As such, her assertions based on those records are
`not admissible
`and cannot establish
`Plaintiff's
`compliance
`with
`RPAPL ~1304. See, HSBC Mortgage Services, Inc. v. Royal, 142 A.D.3d
`952, 954 (2d Dept. 2016) ("[a] proper foundation for the admission
`of a business
`record must be provided
`by someone with personal
`knowledge of the maker's business practices and procedures");
`see
`also, Bank of America, Natl. Assn. v. Wheatley, 158 A.D.3d 736, 738
`(2d Dept 2018) (citations omitted) (Assignee failed to establish,
`prima facie, its compliance
`with statute requiring
`prior notices
`where
`affiant
`"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") ;
`J.P. Morgan Mtge. Acquisition
`Corp. v. Kagan, 157 A.D.3d 875 (2d
`Dept. 2018); Deutsche Bank Natl. Trust Co. v. Carlin, 152 A.D.3d at
`491.
`
`dated July 2, 2014,
`the RPAPL ~1304 notices,
`Additionally,
`provided with Plaintiff's motion papers (see Plaintiff's Exhibit D)
`do not
`include
`list
`of at
`least
`five
`housing
`counseling
`"a
`agencies" with their "last known addresses and telephone numbers"
`(RPAPL ~ 1304[2]). Consequently,
`Plaintiff has failed to establish
`that the notices sent were in compliance with the strict statutory
`requirements
`of RPAPL ~1304. See, Aurora
`Loan Services,
`LLC v.
`Weisblum, 85 A.D.3d at 95 (holding that plaintiff
`failed to meet
`its
`prima
`facie
`burden
`as
`the
`notice
`did
`not
`contain
`the
`statutorily-required
`list of counseling agencies and plaintiff did
`not submit an affidavit of service to establish proper service of
`the notice on the borrowers);
`see also, Bank of America,
`Natl.
`Assn.
`v.
`Wheatley,
`158
`A.D.3d
`at
`738
`(plaintiff
`failed
`to
`demonstrate, prima facie, that the notices included a list of five
`housing counseling agencies, as required by the statute).
`with the
`Since Plaintiff has failed to establish
`compliance
`notice requirements
`of RPAPL ~1304, its application
`for summary
`judgment, a default
`judgment and an order of reference
`must be
`denied.
`SUMMARY:
`in its entirety
`is DENIED
`motion
`Plaintiff's
`Accordingly,
`without prejudice to renewal upon proper papers within ninety (90)
`days of the date hereof. This matter is scheduled for a conference
`on January
`28, 2019 at 9:30 a.m. for the Court to confirm that a
`
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`FILED: ROCKLAND COUNTY CLERK 10/16/2018 03:10 PM
`NYSCEF DOC. NO. 74
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`INDEX NO. 035574/2014
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`RECEIVED NYSCEF: 10/16/2018
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`renewed motion has been made. Appearances
`motion has been made.
`The foregoing
`constitutes
`Court.
`
`are not required if the
`
`the Decision
`
`and Order
`
`of this
`
`Dated: October 1~,2018
`
`New City, New YOLk
`
`ENTER_(J:Yh~
`
`M. THORSEN
`~F
`Acting Supreme Court Justice
`
`TO:
`
`(Via NYSCEF)
`
`MANFRO LLP
`KNUCKLES, KOMOSINSKI,
`Attorneys for Plaintiff
`565 Taxter Road Suite 590
`Elmsford, NY 10523
`SCHOEPS & SPECHT
`Attorneys for Defendants
`and Shirley Beauvais
`334 South Middletown
`Road
`Nanuet, NY 10954
`
`Gerald Beauvais
`
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