West Coast Servicing Inc., Plaintiff, v. FRANCES WEBER FRANCES KOCIVAR JEREMY KOCIVAR AS TRUSTEE OF THE WEBER FAMILY REVOCABLE TRUST DISCOVER BANK MIDLAND FUNDING LLC PECONIC PROPANE INC AMERICAN EXPRESS BANK FIA CARD SERVICES PORTFOLIO RECOVERY ASSOCIATES LLC LVNV FUNDING LLC APO BANK OF AMERICA SAINT JAMES REHABILITATION AND HEALTHCARE CENTER CITIBANK NA PEOPLE OF THE STATE OF NEW YORK JOHN DOES JANE DOES (2023)

Upon the following papers read on this motion for summary judgment : Notice of Motion/ Order to Show Cause and supporting papers by plaintiff (Doc. Nos. 101-122); Notice of Cross Motion and supporting papers (126-131); Answering Affidavits and supporting papers by defendants (Doc. No. ); Replying Affidavits and supporting papers; Other 132-136; it is

ORDERED that plaintiff's motion for summary judgment and an order of reference is granted and defendants' cross-motion to dismiss is denied.

D E C I S I O N

West Coast Servicing Inc. ("Plaintiff") by its attorneys, moves this Court in this residential foreclosure action for summary judgment (motion 002). Richard Weber, Frances Weber a/k/a Frances Kocivar, and Jeremy Kocivar as Trustee of the Weber Family Revocable Trust ("Defendants"), by their attorneys, filed opposition to Plaintiff's summary judgment motion and cross moved to dismiss the case (motion 003). The cross motion seeks an Order (I) dismissing the amended complaint for failure to strictly comply with RPAPL § 1304; and (II) awarding Defendants damages on their second counterclaim.

First, Defendants argue that Plaintiff's Summary Judgment motion must be denied and the foreclosure action dismissed for Plaintiff's failure to strictly comply with RPAPL § 1304. Defendants argue that the (i) 90-day notice was addressed to both Richard and Frances Weber and this alone mandates dismissal; and (ii) 90-day notice was jointly "noticed, addressed, and mailed" to Defendants which also requires dismissal.

This Court is guided by the Court of Appeals decision in Bank of America v. Kessler, 2023 NY Slip Op 00804 when it rejected the Second Department's "bright-line rule," by holding that "to the extent that there is any ambiguity about how to interpret the statute, application of a bright-line rule would contravene the legislative purpose. RPAPL § 1304 is a remedial statute that should be read broadly to help borrowers avoid foreclosure." The Court held that unlike its ruling in Freedom Mortgage Corp. v. Engel, 37 NY3d 1, 169 N.E.3d 912 (2021), a bright-line rule would not be appropriate as "[d]etermining whether additional language in a section 1304 notice is permissible requires no examination of intent or extrinsic evidence, but rather an objective facial determination of the language's relevance, truth, falsity, or potential to mislead or confuse." The Court rather relied on the "workable rule" standard as set forth in CIT Bank v. Schiffman, 36 NY3d 550, 168 N.E.3d 1138 (2021).

Here, inclusion of both spouses' names on the § 1304 notice is neither false nor misleading. Neither Richard Weber nor Frances Weber a/k/a Frances Kocivar (collectively the "Webers") provide affidavits attesting to the confusion that befell them when they received the § 1304 notice addressed to both spouses. Neither exclaimed that because the § 1304 notice was addressed to both rather than each caused them pause in reaching out to the lender to avoid foreclosure - the statute's intent.

The Webers also argue that this foreclosure action must be dismissed because they only received one envelope that contained one letter. Their argument is belied by the Webers own affidavit. At ¶ 5 [NYSCEF Doc. No. 129] the Webers swear that they "carefully reviewed the 90 day notice." They go further and swear that Plaintiff sent us one jointly noticed 90 day notice" that is attached to Plaintiff's moving papers at document number 113. It is clear however that the notice was sent not by Plaintiff, as sworn to by the Webers, but rather the letterhead and salutation are from "The Margolin & Weinreb Law Group, LLP" not the plaintiff - West Coast Servicing Inc. What is clear is that the Webers' sworn testimony relates not to the 90 notice that they refer to in their affidavit (i.e. NYSCEF Doc. No. 113).

Moreover, the Court finds the proper mailing of the § 1304 notice is corroborated by Sandy J. Stolar, Esq.'s contemporaneous affidavit of mailing evidencing that she mailed two different USPS certified mailings, one for each borrower.

As for the mailings by regular mail, Ms. Stolar's affidavit, notarized the same date that the 1304 notice is dated, swears that she served the

"90-day pre-foreclosure notice by depositing a true copy by certified mail return receipt requested and first-class mail thereof in a post-paid wrapper, in an official United States Postal depository under the care and custody of the United States Postal Service within the State of New York. Each of the notices were addressed to each of the following personsat the last known address set forth after each name:

Frances Weber

5 Constance Court

East Setauket, NY 11733

Richard Weber

5 Constance Court

East Setauket, NY 11733."

Finally, Plaintiff further corroborates the separate mailings by including two separate Proof of Filing Statements with the New York State Department of Financial Services that confirms on May 7, 2020 (the same date of the § 1304 notice and Ms. Stolar's affidavit of mailing) a § 1304 notice was sent to Richard Weber and Francis Weber. [NYSCEF Doc. No. 113].

Based upon the Court of Appeals decision in Bank of America v. Kessler, the Webers own affidavit (executed more than 3 years after the mailing), Ms. Stolar's contemporaneously prepared affidavit of mailing, and the two Proof of Filing Statements, there is no basis to dismiss this foreclosure action because of any defect regarding Plaintiff's obligation to satisfy RPAPL § 1304.

Second, Defendants argue that they are entitled to $12,000 in damages for Plaintiff's non-compliance with 15 U.S.C. § 1641(g)(1). However, Defendants fail to make a prima facie showing of non-compliance. Section 1641(g)(1) of Title 15 of the United States Code requires Plaintiff to notify the borrower that a loan was sold "no later than 30 days after the date on which a mortgage loan is sold or otherwise transferred..." The statute of limitations for a private action for damages under TILA is one year from the date of the occurrence. 15 U.S.C. § 1640(e). Here, the "occurrence" is when the loan was sold - not when the assignor executed the assignment.

"[B]ased on its plain language, Section 1641(g)'s disclosure obligation is triggered only when ownership of the 'mortgage loan' or 'debt' itself is transferred, not when the instrument securing the debt (that is, the mortgage) is transferred." Kuhl v. U.S. Bank Trust National Assoc., not in its individual capacity but solely as owner trustee for Legacy Mortgage Asset Trust 2018GS-1, 2022 WL 4088014. "An assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery." Bank of New York v. Silverberg, 86 AD3d 274, 926 N.Y.S.2d 532 (2d Dept. 2011). "Once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note." Id. at 280. "Assignment of the debt carries with it the security therefor, even though such security be not formally transferred in writing." Id.

In support of their counterclaim, Defendants simply point to the date that the assignments of mortgage were executed and conclude that since three of the assignments of mortgage were dated within one year of the complaint, then they have met their burden. Simply citing the date of the assignment of mortgage does not evidence the date that a loan was sold. Defendants fail to provide evidence of a purchase or sale agreement proving the date that each of the transferees acquired the loan. As such, Defendants have failed to allege a plausible claim under 15 U.S.C. § 1641(g).

The Court notes that Defendants withdrew their remaining affirmative defenses and counterclaims. (See NYSCEF Doc. No. 128 at ¶ 8).

Based upon the foregoing, Plaintiff's motion for summary judgment (mot. seq. 002) is granted and Defendants' cross motion to dismiss (mot. seq. 003) is denied. An order of reference will be entered simultaneously herein.

This constitutes an Order of this Court.

Dated: July 26, 2023

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HON. C. STEPHEN HACKELING, J.S.C.

C. Stephen Hackeling, J.