Wells Fargo Bank, N.A. v. Ciurleo

Summary

The New York Appellate Division, Second Department, modified an order in a mortgage foreclosure action by striking the defendant's affirmative defense alleging noncompliance with RPAPL 1304. The court held that the plaintiff established prima facie compliance with the statutory notice requirements, but found that the defendant raised triable issues of fact concerning the plaintiff's standing based on discrepancies involving the note and prior foreclosure actions. The court therefore affirmed the denial of summary judgment, striking the remaining defenses, and an order of reference.

Holdings

1. The plaintiff established prima facie compliance with RPAPL 1304, and the defendant failed to raise a triable issue of fact concerning the notices' mailing or address; therefore, the affirmative defense alleging failure to comply with RPAPL 1304 should be stricken.
2. The plaintiff made a prima facie showing of standing by attaching to the complaint a copy of the note endorsed to it, but the defendant's evidence created triable issues of fact concerning whether Wells Fargo possessed the original note when the action was commenced and concerning the circumstances of the endorsement.

Questions Presented

1. Whether the plaintiff established strict compliance with RPAPL 1304 so that the defendant's affirmative defense based on failure to provide the required ninety-day notice should be stricken.
2. Whether the plaintiff established standing to commence the foreclosure action by demonstrating possession or assignment of the note before commencement.
3. Whether the plaintiff was entitled to summary judgment, striking of the defendant's remaining answer and affirmative defenses, and an order of reference.

Disposition

other