2006 A6 v. 50 50 LLC (2018)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered February 1, 2017, which, to the extent appealed from as limited by the briefs, denied the motion for summary judgment of plaintiff U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Trust 2006–A against defendants John M. Beymer (Beymer) and Barbara Bruno (Bruno) (together, the individual defendants), and granted the individual defendants' cross motion to dismiss the complaint without prejudice, unanimously affirmed, with costs.  Appeal from order, entered on or about August 18, 2016, unanimously dismissed, without costs, as abandoned.

The complaint was properly dismissed because plaintiff failed to establish that it gave proper notice of the foreclosure action to the individual defendants under RPAPL § 1304 as the notice of default was not mailed to the individual defendants' correct address.

Plaintiff's main argument—that RPAPL § 1304 is inapplicable because the loan at issue was not a “home loan”—is not reviewable because it has been raised for the first time on appeal (Nexbank, SSB v. Soffer, 144 A.D.3d 457, 460, 41 N.Y.S.3d 217 [1st Dept. 2016];  compare HSBC Bank USA, N.A. v. Ozcan, 154 A.D.3d 822, 64 N.Y.S.3d 38 [2d Dept. 2017] ).

Regardless, even assuming the inapplicability of RPAPL § 1304, the order would still be affirmed because plaintiff also failed to establish that it provided notice of default to the individual defendants prior to bringing the 2013 foreclosure action in the manner required by the loan documents (Westchester Fed. Sav. & Loan Assn. v. Secor Lake Camp, 37 A.D.2d 615, 616, 323 N.Y.S.2d 514 [2d Dept. 1971] ).  It is undisputed that plaintiff did not send the notices related to this action to the individual defendants at their current residence in California, of which plaintiff had actual knowledge.

Further, while the IAS Court did not address the issue, plaintiff's summary judgment motion could have been properly denied, and the individual defendants' dismissal motion granted, based on the pendency of two simultaneous foreclosure actions in contravention of RPAPL § 1301.  As it is undisputed that the 2008 foreclosure action was pending at the time the 2013 foreclosure action was brought, and that plaintiff did not seek leave of court before doing so, the complaint was subject to dismissal for this reason alone (Aurora Loan Servs., LLC v. Spearman, 68 A.D.3d 796, 796–797, 890 N.Y.S.2d 124 [2d Dept. 2009] ).  Plaintiff's arguments contesting the applicability of RPAPL § 1301(3)—most notably, because the 2008 foreclosure action was dismissed prior to the relevant motion practice in the 2013 foreclosure action—are not grounded in legal support or authority.

We have considered plaintiff's remaining contentions and find them unavailing.