Deutsche Bank National Trust Company v. Nelson

Summary

The Appellate Division, Second Department, reversed orders granting Deutsche Bank National Trust Company summary judgment, striking the defendants’ answer, and appointing a referee in a mortgage foreclosure action. The court held that the plaintiff failed to establish prima facie compliance with RPAPL 1304 and the mortgage’s notice-of-default requirements.

Holdings

1. The plaintiff failed to establish prima facie that it strictly complied with RPAPL 1304 because its affidavit did not demonstrate the affiant's knowledge of the sender's mailing practices and was not supported by independent evidence of actual mailing or a properly established standard office mailing procedure.
2. The plaintiff failed to establish prima facie that the notice of default was mailed by first-class mail in accordance with sections 15 and 22 of the mortgage agreement.
3. The Supreme Court should have denied the branches of the plaintiff's motion seeking summary judgment against the defendants, striking their answer, and an order of reference.

Questions Presented

1. Whether the plaintiff established prima facie strict compliance with RPAPL 1304's 90-day notice requirement.
2. Whether the plaintiff established prima facie that the contractually required notice of default was mailed by first-class mail as required by the mortgage agreement.
3. Whether the plaintiff was entitled to summary judgment, striking of the defendants' answer, and an order of reference.

Disposition

reversed