Summary
This New York Appellate Division decision addresses a mortgage foreclosure action where the defendant sought summary judgment dismissal based on the plaintiff's failure to strictly comply with statutory notice requirements under RPAPL 1304. The court found that the plaintiff improperly combined notices for both borrowers into a single envelope, which violates the condition precedent for commencing residential foreclosure proceedings. Consequently, the appellate court reversed the lower court's denial of the motion and granted summary judgment dismissing the complaint against the defendant.
Topics
Practice areas
Questions Presented
- Whether the plaintiff complied with RPAPL 1304 notice requirements for a residential foreclosure action
- Whether the defendant is entitled to summary judgment dismissing the complaint as to him
Holdings
- Proper service of RPAPL 1304 notice on each borrower is a condition precedent to the commencement of a residential foreclosure action, and a single notice jointly addressed to both borrowers in one envelope does not satisfy that requirement.
- The defendant is entitled to summary judgment because the plaintiff failed to strictly comply with RPAPL 1304 and therefore did not establish a triable issue of fact.
Key quotations
“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action” (210 AD3d at 749)
Factual background
U.S. Bank sought to foreclose a mortgage on a residential property in Huntington Station. The borrowers, Marc and Debra Zakarin, contended that the lender failed to serve the required 90‑day notice separately to each borrower as mandated by RPAPL 1304.
Procedural history
Plaintiff U.S. Bank commenced a foreclosure action in July 2010 against borrowers Marc and Debra Zakarin. The borrowers moved for summary judgment asserting non‑compliance with RPAPL 1304. The Supreme Court, Suffolk County denied the motion. The borrowers appealed, arguing that a single joint notice does not satisfy the statutory notice requirement.