CitiMortgage, Inc. v. Pappas, 2017 NY Slip Op 1177 (N.Y. App. Div. 2017). · Go Syfert
CitiMortgage, Inc. v. Pappas, 2017 NY Slip Op 1177 (N.Y. App. Div. 2017). Cases Citing This Book View Copy Cite
80 citation events (80 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 2017 → 2026 · click a year to view as-of
2017 2021 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) Marchai Props., L.P. v. Fu
N.Y. App. Div. · 2019 · confidence medium
Specifically, the respondent did not submit "an affidavit of service, [or] proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]" ( CitiMortgage, Inc. v Pappas , 147 AD3d at 901 [citations omitted]), or "proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" ( Wells Fargo Bank, NA v Mandrin , 160 AD3d at 1016; see Deutsche Bank Natl.
discussed Cited as authority (rule) Aurora Loan Servs., LLC v. Vrionedes (2×)
N.Y. App. Div. · 2018 · confidence medium
Co. , 25 NY3d 498, 508 ; CitiMortgage, Inc. v Pappas , 147 AD3d at 901).
discussed Cited as authority (rule) Deutsche Bank Natl. Trust Co. v. Heitner
N.Y. App. Div. · 2018 · confidence medium
Specifically, the plaintiff did not submit "an affidavit of service, . . . proof of mailing by the post office, evincing [*2]that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]" ( CitiMortgage, Inc. v Pappas , 147 AD3d at 901 [citations omitted]), or "proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" ( Wells Fargo Bank, NA v Mandrin , 160 AD3d 1014 ).
examined Cited as authority (rule) Bank of Am., N.A. v. Wheatley (3×) also: Cited "see"
N.Y. App. Div. · 2018 · confidence medium
While mailing may be proved by documents meeting the requirements of the business records exception" to the hearsay rule, Benight, in her affidavit, did not aver that she was familiar with the plaintiff's mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed ( CitiMortgage, Inc. v Pappas, 147 AD3d at 901; see Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050 ).
examined Cited as authority (rule) HSBC Bank USA, National Ass'n v. Ozcan (8×)
N.Y. App. Div. · 2017 · confidence medium
In the absence of such postal proof, the plaintiff may also prove its compliance with RPAPL 1304 by submission of documents meeting the requirements of the business records exception to the rule against hearsay under CPLR 4518 ( see CitiMortgage, Inc. v Pappas , 147 AD3d at 901; see also Viviane Etienne Med.
discussed Cited as authority (rule) Wells Fargo Bank, N.A. v. Lewczuk
N.Y. App. Div. · 2017 · confidence medium
While mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay, Arias did not make the requisite showing that he was “familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” (id. at 1050-1051; see Citibank, N.A. v Wood, 150 AD3d 813 [2017]; CitiMortgage, Inc. v Pappas, 147 AD3d 900, 901 [2017]).
discussed Cited as authority (rule) Deutsche Bank National Trust Co. v. Carlin
N.Y. App. Div. · 2017 · confidence medium
Thus, Rhodes failed to lay a proper foundation for admission of records concerning service of the required notices, and his assertions based on these records were inadmissible (see CitiMortgage, Inc. v Pappas, 147 AD3d 900, 901-902 [2017]; U.S. Bank N.A. v Martin, 144 AD3d 891, 892 [2016]; HSBC Mtge.
cited Cited as authority (rule) US Bank National Ass'n v. Richard
N.Y. App. Div. · 2017 · confidence medium
Bank v Latham, 139 AD3d 663, 665 [2016]) or, alternatively, that the plaintiff strictly complied with the notice RPAPL 1304 required (see CitiMortgage, Inc. v Pappas, 147 AD3d 900, 902 [2017]).
discussed Cited as authority (rule) Bank of New York Mellon v. Davis
N.Y. Sup. Ct. · 2017 · confidence medium
After reciting the statute’s “condition precedent” qualification, the Court states: “By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by submission of the proof of mailing by the post office.” (CitiMortgage, Inc. v Pappas at 901 [emphasis added].) The Court goes on to state: “Here, the plaintiff failed to submit an affidavit of service or proof of mailing by the post office,…
cited Cited "see" U.S. Bank Trust, N.A. v. Valade
N.D.N.Y. · 2023 · signal: see · confidence high
See CitiMortgage, Inc. v. Pappas, 147 A.D.3d 900, 901 (2d Dep't 2017).
discussed Cited "see" Wells Fargo Bank, N.A. v. Cherot
N.Y. App. Div. · 2021 · signal: see · confidence high
Here, the Supreme Court properly determined that the plaintiff established its strict compliance with RPAPL 1304. "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Aurora Loan Servs., LLC v Weisblum , 85 AD3d 95, 106 ; see CitiMortgage, Inc. v Pappas , 147 AD3d 900, 901 ; Deutsche Bank Natl.
discussed Cited "see" Nationstar Mtge., LLC v. Gayle
N.Y. App. Div. · 2021 · signal: see · confidence high
RPAPL 1304 requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower ( see RPAPL 1304[2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Aurora Loan Servs., LLC v Weisblum , 85 AD3d 95, 106 ; see CitiMortgage, Inc. v Pappas , 147 AD3d 900, 901 ).
discussed Cited "see" Everbank v. Greisman
N.Y. App. Div. · 2020 · signal: see · confidence high
RPAPL 1304 requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower [*2]( see RPAPL 1304[2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Aurora Loan Servs., LLC v Weisblum , 85 AD3d at 106 ; see Citimortgage, Inc. v Pappas , 147 AD3d 900, 901 ; Deutsche Bank National Trust Co. v Spanos , 102 AD3d 909, 910 ).
discussed Cited "see" Vanderbilt Mtge. & Fin., Inc. v. Ammon
N.Y. App. Div. · 2020 · signal: see · confidence high
RPAPL 1304(1) provides, in pertinent part, that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , [the] lender . . . or mortgage loan servicer shall give notice to the borrower." "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Aurora Loan Servs., LLC v Weisblum , 85 AD3d 95, 106 ; see CitiMortgage, Inc. v Pappas , 147 AD3d 900, 901 ; Flagstar …
discussed Cited "see" Wells Fargo Bank, N.A. v. Morales
N.Y. App. Div. · 2019 · signal: see · confidence high
RPAPL 1304 requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower ( see RPAPL 1304[2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Aurora Loan Servs., LLC v Weisblum , 85 AD3d 95, 106 ; see CitiMortgage, Inc. v Pappas , 147 AD3d 900, 901 ; Deutsche Bank Natl.
discussed Cited "see" U.S. Bank N.A. v. Goldberg
N.Y. App. Div. · 2019 · signal: see · confidence high
"There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon" ( Citigroup v Kopelowitz , 147 AD3d 1014, 1015 ; see HSBC Bank USA , N.A. v Ozcan , 154 AD3d at 826 ). "[M]ailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518" ( HSBC Bank USA, N.A. v Ozcan , 154…
discussed Cited "see" Wells Fargo Bank, N.A. v. Sasson
N.Y. App. Div. · 2018 · signal: see · confidence high
RPAPL 1304(1) provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Aurora Loan Servs., LLC v Weisblum , 85 AD3d 95, 106 ; see Citimortgage, Inc. v Pappas , 147 AD3d 900, 901 ; De…
discussed Cited "see" BAC Home Loans Servicing, L.P. v. Chertov
N.Y. App. Div. · 2018 · signal: see · confidence high
RPAPL 1304(1) provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." RPAPL 1304 sets forth the requirements for the content of such notice ( see RPAPL 1304[1]) and further provides that such notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower ( see RPAPL 1304[2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrow…
discussed Cited "see" Nationstar Mtge., LLC v. LaPorte
N.Y. App. Div. · 2018 · signal: see · confidence high
In opposition, the defendant failed to raise a triable issue of fact ( see generally Zuckerman v City of New York, 49 NY2d 557 ). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" ( Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 ; see CitiMortgage, Inc. v Pappas, 147 AD3d 900 ; Deutsche Bank Natl.
discussed Cited "see" Wells Fargo Bank, N.A. v. Trupia
N.Y. App. Div. · 2017 · signal: see · confidence high
We reverse insofar as appealed from. “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011]; see CitiMortgage, Inc. v Pappas, 147 AD3d 900 [2017]; Deutsche Bank Natl.
Retrieving the full opinion text from the archive…
CitiMortgage, Inc., Successor by Merger to CitiFinancial Mortgage Company, Inc., 1000 Technology Drive, O’Fallon, MO 63368-2240, Appellant,
v.
Eva Pappas, Respondent, Et Al., Defendant
2015-06825.
Appellate Division of the Supreme Court of the State of New York.
Feb 15, 2017.
2017 NY Slip Op 1177
Leventhal, Sgroi, Lasalle, Bar-Ros.
Cited by 43 opinions  |  Published

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated February 27, 2015, which denied its motion, inter alia, for summary judgment on the complaint and granted the cross motion of the defendant Eva Pappas for summary judgment dismissing the complaint insofar as asserted against her.

Ordered that the order is affirmed, with costs.

In 2011, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Eva Pappas (hereinafter the defendant). In its complaint, the plaintiff alleged, among other things, that, upon information and belief, it complied with RPAPL 1304. The defendant timely interposed an answer denying the material allegations in the complaint and asserting affirmative defenses, including that the plaintiff failed to serve a proper notice pursuant to RPAPL 1304. The plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against her, arguing, inter alia, that the plaintiff failed to comply with RPAPL 1304. The Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion. The plaintiff appeals.

The Supreme Court properly determined that the plaintiff failed to establish, prima facie, that it strictly complied with the 90-day notice required by RPAPL 1304. In support of its motion, the plaintiff relied upon the affidavit of Adam Gantner, a “Business Operations Analyst” employed by the plaintiff, and certain business records attached thereto. Gantner averred that he had personal knowledge of the facts contained in his affidavit by reason of his familiarity with “certain” practices and procedures of the plaintiff, in particular “certain systems of record” utilized by the plaintiff to maintain, record, and create information related to the residential mortgage loans that[*901] the plaintiff services, and “the process by which employees of [the plaintiff] enter information in those systems.” Referring to certain records, Gantner averred that on September 8, 2010, the plaintiff mailed to the defendant, by first-class and certified mail, a notice pursuant to RPAPL 1304. A copy of the RPAPL 1304 notice was attached to Gantner’s affidavit, and an attached computer record shows entries relating to “NEW YORK 90 DAY NOTICE CERT — 9/08/10” and “NEW YORK 90 DAY NOTICE REG MAIL — 9/08/10.”

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011]; see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910 [2013]). The statute requires that such notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (see RPAPL 1304 [2]). By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by submission of the proof of mailing by the post office.

Here, the plaintiff failed to submit an affidavit of service (see Bank of N.Y. Mellon v Aquino, 131 AD3d 1186, 1186 [2015]; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d at 910) or proof of mailing by the post office, evincing that it properly served the defendant pursuant to RPAPL 1304. Contrary to the plaintiff’s contention, Gantner’s affidavit and attached business records were not sufficient to establish that the notices were sent to the defendant in the manner required by RPAPL 1304. While mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay under CPLR 4518 (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508 [2015]; Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 793 [2015]; Nocella v Fort Dearborn Life Ins. Co. of N.Y., 99 AD3d 877 [2012]), here, Gantner did not aver that he was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d at 793; Nocella v Fort Dearborn Life Ins. Co. of N.Y., 99 AD3d 877 [2012]). Therefore, Gantner’s unsubstantiated and[*902] conclusory statements were insufficient to establish that the 90-day notice required by RPAPL 1304 was mailed to the defendant by first-class and certified mail (see Cenlar, FSB v Weisz, 136 AD3d 855, 856 [2016]; cf. Flagstar Bank, FSB v Mendoza, 139 AD3d 898, 900 [2016]; Citimortgage, Inc. v Espinal, 134 AD3d 876, 878 [2015]). Accordingly, the Supreme Court properly denied the plaintiffs motion for summary judgment.

On her cross motion, the defendant established her prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against her by relying upon the same evidence, further supported by her own affidavit attesting that she did not receive any RPAPL 1304 notice (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106). The plaintiff did not rebut this showing, and thus, the Supreme Court properly granted the defendant’s cross motion.

In light of our determination, we need not reach the parties’ remaining contentions.

Leventhal, J.P., Sgroi, LaSalle and Bar-ros, JJ., concur.