August 29, 2014
by Lijue Philip
Rosicki, Rosicki & Associates, P.C. – USFN Member (New York)
Increasingly, trial courts have been imposing a higher standard of proof on plaintiffs seeking to proceed with their foreclosure action. Recently, the appellate division ruled that a conclusory statement that a pre-foreclosure notice of default was sent is insufficient to establish that this contractual condition precedent was complied with. [Wells Fargo Bank, N.A. v. Eisler, 118 A.D.3d 982 (2d Dept. 2014)].
Eisler involved a contested residential foreclosure in which the borrowers interposed an answer, alleging among other things that the plaintiff had not sent a notice of default prior to commencing the action. The plaintiff moved for summary judgment to strike the answer and the borrowers cross-moved for dismissal, particularly alleging that the plaintiff had not sent a notice of default.
The trial court found that the plaintiff had submitted an unsubstantiated and conclusory affidavit stating that the notice of default had been sent in accordance with the terms of the mortgage, along with a copy of the notice of default. The court found that this was insufficient to establish that the notice of default was actually sent to the mortgagors by first-class mail to the address it was alleged to have been sent to. Therefore, the court granted the borrower’s cross-motion and dismissed the action. This dismissal was appealed.
The appellate division affirmed the dismissal. Echoing the trial court’s decision almost verbatim, the appellate division found that a simple declaration that the notice of default was sent “in accordance with the terms of the mortgage” is too vague and conclusory a statement to establish that the notice was in fact sent.
Mindful of the Eisler decision, in order to establish that such notice was sent, a plaintiff will likely have to attest to whom the notices were sent, when and where they were sent, and in what manner they were sent. Recommended practices would be to ensure that affidavits regarding the sending of a pre-foreclosure notice specify this information.
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