BEAR STERN ASSET BACKED SECURITIES TRUST 2006 IMI v. Saul Romero, et al., Defendants. (2020)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about April 3, 2018, which granted defendant Ceesay's motion to vacate an order of reference, reinstate his answer, and dismiss the complaint as against him, unanimously affirmed, without costs.

Defendant demonstrated a reasonable excuse for its default in opposing plaintiff's motion for summary judgment on its foreclosure complaint (CPLR 5015[a][1]).  Defendant's assertion of difficulties with the court's e-filing system is a reasonable excuse (see e.g. Matter of Rivera v. New York City Dept. of Sanitation, 142 A.D.3d 463, 36 N.Y.S.3d 464 [1st Dept. 2016];  Spira v. New York City Tr. Auth., 49 A.D.3d 478, 854 N.Y.S.2d 134 [1st Dept. 2008]).

Defendant also demonstrated a meritorious defense to the action (see Rivera, 142 A.D.3d at 463, 36 N.Y.S.3d 464).  Plaintiff never sent him a statutorily compliant prior notice of risk of foreclosure (see RPAPL 1304), a condition precedent to the commencement of a residential foreclosure action (see HSBC Bank USA, N.A. v. Ozcan, 154 A.D.3d 822, 825, 64 N.Y.S.3d 38 [2d Dept. 2017]).  The affidavit by an officer of plaintiff's servicing company on which plaintiff relies refers to, and attaches, only a notice of default that is not in compliance with RPAPL 1304.  Moreover, the affidavit merely confirms the officer's review of her employer's business records, which is insufficient to establish proof that the notice was mailed.  Plaintiff argued in opposition to the motion to vacate that it sent an RPAPL 1304 notice in good faith.  However, there is no proof of actual mailing (see CitiMortgage, Inc. v. Moran, 167 A.D.3d 461, 90 N.Y.S.3d 29 [1st Dept. 2018]).

Plaintiff contends that the requirements of RPAPL 1304 are inapplicable because the mortgage loan was not a “home loan” as defined under that statute (see id. § [6][a][1]).  We do not reach this contention, because it involves issues of fact raised for the first time on appeal (cf.  Ozcan, 154 A.D.3d at 824–825, 64 N.Y.S.3d 38 [deciding “home loan” issue where defendant did not refute that the subject property was a commercial property and that he lived elsewhere]).