Bare denial of receipt

Federal Natl. Mtge. Assn. v Davis, 2020 NY Slip Op 01327 [2d Dept 2020]

The defendant Joseph Davis’s bare denial of receipt of the notice was similarly insufficient to demonstrate his entitlement to summary judgment dismissing the complaint insofar as asserted against him (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 23-24).


Bank of Am., N.A. v Bittle, 2019 NY Slip Op 00086 [2d Dept. 2019]

Here, Nationstar relied on the affidavit of its employee, Michael Woods, who averred, in relevant part, that “the 90-day notices required by statute were mailed to [d]efendant by regular and certified mail to the last known mailing address and to the property address on January 3, 2013,” and that the letters “were sent in separate envelopes from any other mailing or notice.” However, the record contains a single 90-day notice, bearing the plaintiff’s letterhead and addressed to the defendant at the subject property, with no clear indication as to whether the mailing was made by registered or certified mail, or by first-class mail. Moreover, Woods—who is not an employee of the plaintiff—did not aver in his affidavit to having any familiarity with the plaintiff’s mailing practices and procedures. Under these circumstances, Nationstar failed to establish, prima facie, strict compliance with RPAPL 1304 (compare Wells Fargo Bank, NA v Mandrin, 160 AD3d at 1016, Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049, 1050, and Citimortgage, Inc. v Pappas, 147 AD3d 900, 901, with Citimortgage, Inc. v Banks, 155 AD3d 936, 937).

The bold is mine.


Aurora Loan Servs., LLC v Vrionedes, 2018 NY Slip Op 08622 [2d Dept. 2018]

“Although an affidavit of service may be a preferable method for a plaintiff to prove that it mailed the RPAPL 1304 notices in accordance with the statute, that is not the only method by which a residential foreclosure plaintiff may establish that it properly mailed the required notice” (HSBC Bank USA, N.A. v Ozcan, 154 AD3d at 826 [citation omitted]; see Flagstar Bank, FSB v Mendoza, 139 AD3d at 900). As this Court has previously observed, “[t]here 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 AD3d at 826; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508; CitiMortgage, Inc. v Pappas, 147 AD3d at 901).


CitiMortgage, Inc. v Moran, 2018 NY Slip Op 08435 [1st Dept., 2018]

Plaintiff failed to establish a presumption that it properly served defendant with RPAPL 1304 notice through proof either of actual mailing or of a standard office practice or procedure for proper addressing and mailing (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Its business operations analyst testified at the hearing on this issue that she was familiar with plaintiff’s record keeping practices and procedures. However, she did not testify either that she was familiar with plaintiff’s mailing procedures or that she was personally aware that RPAPL 1304 notices had been mailed to defendant (see HSBC Bank USA v Rice, 155 AD3d 443, 444 [1st Dept 2017]; HSBC Bank USA, N.A. v Gifford, 161 AD3d 618 [1st Dept 2018]). Nor does the fact that some of the RPAPL 1304 notices admitted into evidence at the hearing bear a certified mail number suffice to raise the presumption of proper service (Nationstar Mtge., LLC v Cogen, 159 AD3d 428, 429 [1st Dept 2018]).