WILMINGTON SAVINGS FUND SOCIETY v. LOPEZ (2026)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered June 26, 2025, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment and an order of reference as against defendant David Lopez, Jr., unanimously reversed, on the law, without costs, and the motion granted.

In 2008, defendant's father granted a note and mortgage in the principal amount of $458,000 to plaintiff's predecessor-in-interest, Wells Fargo Bank, N.A. In or around late 2009, Wells Fargo purportedly mailed an RPAPL 1304 notice and a contractual pre-action default notice to the father.  Wells Fargo then brought this action in January 2010 seeking a judgment of foreclosure and sale and a deficiency judgment.  In 2014, defendant's father passed away and defendant was appointed administrator of the estate.  In 2015, the property was deeded to defendant and in April 2016, Wells Fargo assigned the mortgage and note to plaintiff.

In October 2019, plaintiff's first motion for summary judgment was granted as to all issues except whether the contractual and statutory pre-foreclosure notices had been mailed.  In May 2021, plaintiff again moved for summary judgment.  This time, however, plaintiff agreed to waive any deficiency liability against the father's estate and discontinued the action as against the estate meaning that defendant ceased to be a defendant in his role as the estate's administrator and continued as a defendant solely as heir to and owner of the mortgaged property.  Plaintiff argued that defendant, in his individual capacity, lacked standing to raise the defense of plaintiff's failure to comply with contractual and statutory pre-foreclosure notices, a defense which belongs to the original borrower.

Supreme Court should have granted plaintiff's motion for summary judgment and an order of reference because defendant lacks standing to raise a defense based on plaintiff's failure to comply with RPAPL 1304.  Plaintiff does not dispute that the loan was a home loan subject to the statute and that, therefore, Wells Fargo needed to comply with it as a condition precedent to bringing this action.  However, “[n]oncompliance with RPAPL 1304 ․ in a mortgage agreement [is a] personal defense[ ] that may not be raised by parties who are strangers to the subject note and mortgage” (U.S. Bank N.A. v. Medina, 230 AD3d 1371, 1372, 1377 [2d Dept 2024] ).  Here, once plaintiff discontinued the action as against the father's estate, the case continued against defendant solely in his individual capacity as current owner of the property.  Even though defendant remains an obligor in the sense that he acquired the property subject to his father's mortgage, he is no different from any other transferee of property subject to a mortgage, and thus he is a stranger to the note and mortgage instruments and lacks standing to raise an RPAPL 1304 defense, which is personal to the borrower (see Medina, 230 AD3dat 1372, 1377).

For essentially identical reasons, defendant lacks standing to raise a defense to the effect that Wells Fargo failed to mail a contractual default notice to defendant's father (see Medina, 230 AD3d at 1377).

In light of our determination, we need not address the remaining arguments.