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New York: The 90-Day Notice and Proving it was Sent

Posted By USFN, Tuesday, December 12, 2017
Updated: Tuesday, November 14, 2017

December 12, 2017

by Bruce J. Bergman
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. – USFN Member (New York)

Two recent cases in New York confirm that sending the 90-day notice is a condition precedent to initiate a home loan mortgage foreclosure action, and that failure to do so will defeat summary judgment and effectively defeat the case. [Citibank, N.A. v. Wood, 150 A.D.3d 813, 55 N.Y.S.3d 109 (2d Dept. May 10, 2017); Wells Fargo Bank, N.A. v. Trupia, 150 A.D.3d 1049, 55 N.Y.S.3d 134 (2d Dept. May 17, 2017).]

This is hardly welcome for lenders, but it is nothing new. What is perhaps significant is the more obscure issue of how to prove that the 90-day notice was sent. Each lender failed on that point in the cited cases.

In the Citibank case, the court held that the plaintiff had failed to submit an affidavit of service (or any other proof of mailing by the post office) showing that it properly served the borrower according to the statute. Rather, the affidavit of an officer simply referenced supposed tracking numbers stamped on the notice. This was held to be insufficient to show that the notice was sent in the manner required by the statute because the loan servicer did not provide proof of a standard office mailing procedure and offered no independent proof of the actual mailing.

In the Wells Fargo case, the plaintiff submitted an affidavit of an officer stating that she had reviewed the 90-day notice sent to the borrower on a certain date to the last known address by first-class and certified mail. Annexed to the affidavit was a copy of that notice, along with a copy of the certified mail receipt and the certified mail number; however, the receipt contained no language indicating that it was issued by the U.S. Postal Service. The court held that although mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay, here, the officer did not claim that she was familiar with the plaintiff’s mailing practices and procedures. Consequently the plaintiff “did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed [citation omitted].” In the end, the plaintiff was simply unable to support the officer’s assertion that the notice was mailed to the borrower by first-class mail.

All of this readily suggests that foreclosing plaintiffs will need to have procedures in place to ensure that actual proof of a mailing, according to the statute, can be presented to a court when a borrower claims that the 90-day notice was not sent.

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