21st Mtge. Corp. v. Nodumehlezi

Summary

The New York Appellate Division, Second Department reversed an order and judgment of foreclosure and sale and dismissed the foreclosure complaint against Kwaku Nodumehlezi. The court held that the plaintiff failed to establish at trial compliance with RPAPL 1303, which requires delivery of a specified foreclosure notice, and that the trial court improperly relied on documents submitted or previously filed outside the trial evidence.

Holdings

1. The appeal from the order appointing a referee was dismissed because the right to take a direct appeal from that order terminated upon entry of the order and judgment of foreclosure and sale; the issues raised on that appeal were reviewable on the appeal from the later judgment.
2. A foreclosing plaintiff must establish compliance with RPAPL 1303 at trial, including delivery of the required notice with the summons and complaint and compliance with the statute's formatting and colored-paper requirements. Failure to sustain that burden requires dismissal of the foreclosure complaint.
3. A trial court may not rely on previously e-filed documents to establish a disputed element after trial when the documents were not properly introduced and the opposing party had no opportunity to rebut them.

Questions Presented

1. Whether the appeal from the order appointing a referee remained directly appealable after entry of the order and judgment of foreclosure and sale.
2. Whether the plaintiff established at trial that it complied with RPAPL 1303's requirements for delivering the statutory foreclosure notice.
3. Whether the Supreme Court could rely in its posttrial decision on previously e-filed documents that had not been introduced at trial and that the defendant had no opportunity to rebut.
4. Whether noncompliance with RPAPL 1303 required dismissal of the foreclosure complaint insofar as asserted against Nodumehlezi.

Disposition

reversed_and_remanded