Summary
This New York Appellate Division decision affirms a lower court's order granting summary judgment in a mortgage foreclosure action. The court held that the plaintiff sufficiently demonstrated compliance with Real Property Actions and Proceedings Law sections 1303, 1304, and 1306 regarding required notices to the borrower and filings with the Department of Financial Services. The defendants failed to raise triable issues of fact in opposition to the plaintiff's prima facie showing of statutory compliance. Consequently, the foreclosure and sale order was affirmed with costs.
Topics
Practice areas
Questions Presented
- Whether the plaintiff complied with RPAPL §§1303, 1304, and 1306, thereby justifying summary‑judgment dismissal of the defendants' affirmative defenses.
- Whether strict compliance with RPAPL §1304 notice is a condition precedent to the commencement of a foreclosure action.
Holdings
- The plaintiff satisfied the statutory requirements of RPAPL §§1303, 1304, and 1306; therefore the summary‑judgment motions dismissing the defendants' affirmative defenses were proper.
- Strict compliance with RPAPL §1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action.
Key quotations
“"Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action"”
“"RPAPL 1303 requires the foreclosing party to deliver, along with the summons and complaint, a notice titled 'Help for Homeowners in Foreclosure' ... in bold, 14‑point type and printed on colored paper ..."”
Factual background
In October 2006 Caren Litkowski executed a $620,000 promissory note secured by a mortgage on residential property in Monsey. Bank of America, N.A. (BANA) initiated foreclosure proceedings in November 2011. The plaintiff later moved to substitute itself for BANA and sought summary judgment dismissing the defendants' affirmative defenses based on alleged non‑compliance with RPAPL §§1303, 1304, and 1306. The plaintiff produced mailing records and filing statements to show compliance with those statutory requirements.
Procedural history
The Supreme Court, Rockland County entered an order on December 7, 2021 granting summary‑judgment motions that dismissed the defendants' affirmative defenses for failure to comply with RPAPL §§1303, 1304, and 1306, and later entered a judgment of foreclosure and sale on January 9, 2023. The defendants appealed that order and judgment.