HSBC USA 2007 2007 v. LTD (2025)

Plaintiff HSBC Bank USA, National Association as Trustee for the Holders of the Ellington Loan Acquisition Trust 2007-1, Mortgage Pass-Through Certificates, Series 2007-1 ("HSBC" or "plaintiff"), commenced this action against defendants Randy Howell ("Howell") and Marilyn Granville ("Granville") ("defendants") to foreclose on the mortgage held by defendants at a dwelling located at 370 Warwick Street, Brooklyn. At the beginning of the trial, the unpaid balance on the mortgage was $559,456.

Defendants interposed the defense that plaintiff lacks to standing to pursue this lawsuit as it failed to comply with RPAPL § 1304 (1) which provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee, or mortgage loan servicer shall give notice to the borrower." Defendants also contended that plaintiff failed to establish strict compliance with RPAPL § 1303 and the default notice requirement contained in the alleged mortgage, and that plaintiff has failed to prove the date of the default.

Plaintiff countered that it complied with RPAPL § 1303 through the testimony of its process servers who actually served copies of the RPAPL § 1303 notice upon Howell and Granville. Plaintiff also argued that it submitted documentary evidence to establish its strict compliance with the notice requirements of RPAPL § 1304.

The Hon. Noach Dear denied plaintiff's motion for summary judgment finding that the affidavit of Frank Rossa — vice president of Nationstar — and exhibits annexed thereto were insufficient to establish as a matter of law that the §§ 1303 and 1304 notices were timely and properly sent. Justice Dear found that Rosas' conclusory affidavit, which boiled down to "our business records show that it was sent in an appropriate and timely manner," failed to create a presumption of mailing and service, citing Citimortgage, Inc. v. Espinal, 134 A.D.3d 876 (2d Dept. 2015) and Wells Fargo Bank N.A. v. Elder, 118 A.D.3d 982 (2d Dept. 2014).

Case Law

In order to establish a prima facie entitlement to judgment as a matter of law, a plaintiff in a mortgage foreclosure action bears the burden of producing the unpaid note, mortgage, and evidence of default on the loan. LNV Corp. v. Sofer, 171 A.D.3d 1033, 1035 (2d Dept. 2019); Wells Fargo Bank, N.A. v. Heiney, 168 A.D.3d 1126, 1127 (2d Dept. 2019). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that when the action was commenced, it was either the holder of, or the assignee of the underlying original note. U.S. Bank v. Cadeumag, 81 Misc. 3d 660, 664 (Sup. Ct., Kings Co. 2023) citing Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361-362 (2015). See also, LGF Holdings, LLC v. Skydel, 39 A.D.3d 814, 814 (2d Dept. 2016); Wells Fargo Bank, N.A. v Jones, 139 A.D.3d 520, 523 (1st Dept. 2016); Wells Fargo Bank, N.A. v Rooney, 132 A.D.3d 980, 981 (2d Dept. 2015). "Either a written assignment of the underlying note or the physical delivery of the note . . . is sufficient to transfer the obligations, and the mortgage passes with the debt as an inseparable incident." U.S. Bank N.A. v. Henry, 57 A.D.3d 839, 840-844 (2d Dept 2017). See also, LNV Corp, supra, 71 A.D.3d at 1035. When a defendant has challenged the plaintiff's standing in a foreclosure action, a plaintiff must also demonstrate that it was the holder or assignee of the note at the time the action was commenced. Bank of Am., N.A. v Sebrow , 180 A.D.3d 982, 984 (2d Dept. 2020). See also, U.S. Bank N.A. v. Rose, 165 AD3d 1310, 1311 (2d Dept. 2018); Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684 (2d Dept. 2016).

Here, contrary to defendants' contention, plaintiff established, prima facie, that it had standing to prosecute this action by demonstrating that it was in physical possession of the note, endorsed in blank, at the time this action was commenced. See, U.S. Bank N.A. v. Auguste, 173 A.D.3d 930, 933 (2d Dept. 2019); U.S. Bank N.A. v. Offley, 170 A.D.3d 1240, 1241 (2d Dept. 2019). Since plaintiff attached a copy of the note to the complaint, it was not required to offer proof of a written assignment of the underlying note. See, Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932 (2d Dept. 2013). Furthermore, defendants conceded at trial that plaintiff was the proper assignee of the note and mortgage at the time this proceeding was commenced and also did not vigorously challenge that plaintiff established the date of the default. Therefore, plaintiff has standing to bring this foreclosure action. "There is simply no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it (see UCC 3-204 [2]). [It also] is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date." JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645 (2d Dept. 2016).

At trial, defendants argued that plaintiff failed to establish the date of the alleged default or, alternatively, that it was not proven the default occurred on January 1, 2010. They also contended that plaintiff could not demonstrate strict compliance with the requirements of RPAPL §§ 1303 and 1304.

A. Proof of Default

Defendants assert that plaintiff's witnesses, Mr. Chromiak and Ms. Burden, are not familiar with, and lack personal knowledge of the record keeping practices and procedures of the prior servicer of the loan, Wilshire Credit Corporation, as of the alleged default date of January 1, 2010. They also assert that neither Chromiak nor Burden produced the actual records from Wilshire upon which they relied, and that plaintiff relies upon inadmissible hearsay to show that defendants defaulted under the terms of the loan documents, pointing to Hudson City Sav. Bank v. DePasquale, 113 A.D.3d 595, 596 (2d Dept. 2014) (a factual inconsistency in a section 1304 notice is a fatal defect in plaintiff's ability to prove a prima facie case).

Plaintiff counters by pointing to Second Department precedent which holds that a prior loan servicer's records may relied upon if the proponent can establish that the records provided by the prior servicer "were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business." Bank of New York Mellon v. Gordon, 171 A.D.3d 197, 203-204 (2d Dept. 2019). See also, Bank of Am., N.A. v. Brannon, 156 A.D.3d 1, 8 (1st Dept. 2017); State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1296 (3d Dept. 2012).

In Gordon, supra, the court found merit to Gordon's defense that the plaintiff failed to demonstrate that he defaulted in the repayment of the note because the plaintiff failed to lay a proper foundation for the business records of the prior servicer Bayview. Gordon, supra, 171 A.D.3d 197 at 210. The plaintiff relied upon the affidavit of one Carroll, who was a document coordinator for the plaintiff's servicer Bayview. Id. at 208. Carroll stated that she had reviewed Bayview's records and that Gordon had defaulted as of May 2008. Id. Although Carroll adequately described the record keeping practices and procedures utilized by Bayview, she did not actually attach or incorporate Bayview's business records into her affidavit. Id. Since her knowledge of Gordon's default was based upon her review of unidentified records maintained by Bayview, the court held that her affidavit constituted inadmissible hearsay. Id. at 208-209.

The only purported business record specifically identified by Carroll as demonstrating Gordon's default was a document dated June 16, 2008. Carroll did not allege that Bayview created that document, and the document indicated, on its face, that it was created by Countrywide, the original lender. Id. at 209. Since Carroll did not allege that she was personally familiar with that entity's record-keeping practices and procedures, she could not lay proper foundation for its admission. Id. at 208-209. While Carroll's status as an employee of Bayview did not mean that she was incompetent to lay a foundation for the admission of business records created by another entity, such records could only be admitted into evidence "if the recipient can establish personal knowledge of the maker's business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business. Id. at 209 citing People v. Cratsley, 86 N.Y.2d 81, 90-91 (1995).

Since she failed to attest to her personal knowledge of Countrywide's record-keeping practices, and failed to allege that the document that she attached to her affidavit was incorporated into Bayview's records and routinely relied upon by Bayview in its business, her affidavit was insufficient to lay a proper foundation for the admission of the document dated June 16, 2008. Gordon, supra, 171 A.D.3d at 210. See also, Bank of N.Y. Mellon v. Mannino, 209 A.D.3d 707, 708 (2d Dept. 2022); Aurora Loan Servs., LLC v Baritz, 144 A.D.3d 618, 619-620 (2d Dept. 2016); HSBC Mtge. Servs., Inc. v. Royal, 142 A.D.3d 952, 954 (2d Dept. 2016); Aurora Loan Servs., LLC v Mercius, 138 A.D.3d 650, 652 (2d Dept. 2016).

In this case, plaintiff's witness Zachary Chromiak testified that he has worked for Bank of America ("BoA") since September 2011 and has been an assistant vice president for consumer resolution since February 2012. He reviewed the records pertaining to BoA's servicing of the loan from 2010 through 2013 and testified that the loan was part of a collection of loans pooled into the Ellington Loan Acquisition Trust of 2007-17 that listed HSBC as the trustee and Wilshire Credit Corporation as the servicer of the trust. BoA became the servicer of the subject loan after acquiring or merging with Wilshire. He testified that Wilshire's service records become BoA servicing records upon the merger. Chromiak testified that the information contained in Wilshire's business records pertaining to the subject loan was incorporated into BoA's business records and that the records were relied upon by BoA in its day to day business of servicing the subject mortgage loan.

Chromiak testified that BoA maintained a detailed history of payments that were received for the particular loan and that it made and maintained these records in the regular course of its business as a loan servicer. He also averred that BoA made the entries concerning the payments on the loans at the time of the acts, transactions or occurrences reflected in the entries. The payment history was set forth in plaintiff's Exhibit 8, which consisted of a printout from an electronic system. Chromiak explained that the line items contained within the exhibit were entered at or near the time of receipt of payment or disbursal of payment by BoA associates. He stated that the entries in the electronic system cannot be edited except with subsequent comment and cannot be deleted or altered, and are all made with some kind of associate control. Chromiak was familiar with and trained on this payment process. Exhibit 8 showed the date of the last payment in April 15, 2011. The court admitted BoA's payment history for the subject loan into evidence through Chromiak's testimony because he appropriately authenticated the records.

Plaintiff's witness Rene Burden, an employee of Nationstar Mortgage, LLC d/b/a Mr. Cooper ("Mr. Cooper"), the current servicer of the mortgage loan on behalf of HSBC, testified extensively as to Mr. Cooper's practices and procedures for the onboarding of prior servicers' records (i.e. Wilshire to BoA to Nationstar LLC ). She discussed defendants' loan payment histories, Mr. Cooper's incorporation of prior servicers' records into its own business records in the regular course of business, and Mr. Cooper's reliance upon such incorporated records in the ordinary course of its loan servicing. After hearing Burden's testimony, the court admitted Mr. Cooper's loan payment history into evidence, which, consistent with BoA's loan payment history, revealed that the subject mortgage loan went into default for the installment payment due on January 1, 2010.

Based upon the above, plaintiff has proven the date of default of the subject loan and established the chain of custody from Wilshire to BoA to Mr. Cooper. Plaintiff therefore established that the loan was in default for the installment payment that became due on January 1, 2010.

B. RPAPL § 1303

RPAPL § 1303 specifies how a notice of foreclosure must be printed, formatted, and served on a mortgagor-defendant in an foreclosure proceeding. The statute explains the wording, fonts, and paper color necessary for compliance with effective service of the notice of foreclosure. It mandates that the foreclosing party "attach a notice including sources of information and assistance to homeowners in foreclosure to the summons and complaint." Gustavia Home, LLC v. Hoyer, 362 F. Supp. 3d 71, 84-85 (E.D.N.Y. 2019). To establish compliance, the affidavit of service must attest to the strict requirements of § 1303. Gustavia Home, supra, 362 F. Supp. 3d at 1009 (sworn affidavit sufficient where affiant states he served defendants with a "1303 NOTICE-Help for Homeowners in Foreclosure in bold fourteen-point type and printed on colored paper, [with] the title to the notice printed in twenty-point type," along with the summons, complaint in the instant action, and certificate of merit). See, West Coast 2014-7, LLC v. Tolson, No-15-CV-6306, 2017 U.S. Dist. LEXIS 125266 (E.D.N.Y. Aug. 7, 2017) (compliance with RPAPL § 1303 established where the plaintiff "submitted an affidavit of service" indicating that residents were served with pleadings and a certificate of merit, as well as "[a] second affidavit of mailing" indicating that residents "were served with § 1303 Notices by first-class mail and certified mail"). But see, Bank of N.Y. Mellon v. McCaffrey, 207 A.D.3d 614 (2d Dept. 2022).

"Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint." Eastern Sav. Bank, FSB v. Tromba, 148 A.D.3d 675, 676 (2d Dept. 2017). Therefore, the foreclosing party has the burden to show that the other party was properly served with notice. See, MTGLQ Invs., L.P. v. Assim, 209 A.D.3d 1006, 1009 (2d Dept. 2022) (finding that the plaintiff did not meet its burden because the process server's affidavit failed to denote whether the notice complied with all requirements).

In their post-trial memorandum, defendants do not specifically allege noncompliance with any physical detail of the RPAPL notice, but claim that service was not properly effectuated in compliance with RPAPL § 1303 because the witness, David Feldman, had no independent recollection of events, relied entirely on his affidavit of service, and did not have additional evidence, such as a logbook or work order. See, Sperry Assoc. Fed. Credit Union v. John, 160 A.D.3d 1007 (2d Dept. 2018). In John, supra, a case not involving the RPAPL, the court held that there was insufficient evidence to show proper service because the affidavit relied upon by the plaintiff was effectively disputed by the defendant, and there was no accompanying evidence such as a logbook to corroborate the plaintiff's assertion of proper service. Id. at 1008. Thus, where a process server has no independent recollection of events and the defendant disputes the affidavit, he must produce the logbook or other business record into evidence to clarify a mistake he made in his affidavit of service as to the actual time of service. Id. at 1008.

The case at bar, however, is distinguishable as defendants have not pointed out a deficiency in the affidavit produced by Feldman as was the case in John, supra. A properly submitted affidavit of service from a process server establishes prima facie evidence of compliance with RPAPL § 1303. See, Bank of Am., N.A. v. Budhan, 171 A.D.3d 622, 622 (1st Dept. 2019) (although the process server had no independent recollection of the service and did not bring his log book to the hearing, his affidavit of service was sufficient and the defendant failed to properly invalidate the affidavit with testimony); Ozcan, supra, 154 A.D.3d at 827-828.

Plaintiff's witness Feldman used his affidavit of service to refresh his memory and testified that he visited the property, 370 Warwick Street, Brooklyn on September 26th and October 8th of 2015 to complete service on Granville. He served the required notice "labeled 'Help for Homeowners in Foreclosure' " with the title in bold, twenty-point type, and the body in bold fourteen-point type, which was printed on paper that was a different color than the summons and complaint. See, Gustavia Home, LLC v. Hoyer, 362 F. Supp. 3d at 85 (finding that an affidavit of service attesting to the strict requirements of RPAPL § 1303 was sufficient to establish compliance). Feldman testified that he took a photograph of the property, entered defendant Marlyn Ann Granville's name, description, and time he served her on October 8, 2015, and transmitted it to Provest. He stated that he signed his affidavit later that same night after a courier-notary delivered it to him. The court then accepted Feldman's affidavit of service into evidence.

Plaintiff's other witness, Kenneth Wonica, testified about his role as a process server for Provest. He refreshed his recollection of serving Howell by reviewing his logbook and work tickets, which were made contemporaneously with the acts reflected therein and maintained in the ordinary course of business. Wonica stated that he served Howell by personally delivering the summons, complaint, notice of commencement of action, and the mandatory RPAPL § 1303 notice to a person of suitable age and discretion — to wit, defendant's sister Meldine Nelson at her property, 259-56 149th Road, Rosedale, New York in 2015. The affidavit also set forth that the 1303 notice consisted of a piece of paper in a color different from the color of the notice of commencement of action in bold 14 point type with the title of said notice in bold 20 point type.

Wonica explained that his staff prepared his affidavit of service based on his work tickets, GPS records, a photograph of the property, and his login to the service system, where he entered Meldine Nelson's name, physical description, and the time of service. This information was transmitted to both Provest and an independent server company that maintains a digital record of the service. Wonica confirmed that he signed his affidavit, and his signature matched the one on Plaintiff's Exhibit 1. Following voir dire, the court admitted Wonica's affidavit of service into evidence. Additionally, Plaintiff produced an affidavit of mailing to Howell at his sister's address, including the same materials referenced above.

Based upon the testimony of Feldman and Wonica and the exhibits admitted into evidence, the court finds that plaintiff satisfied the requirements of RPAPL § 1303.

C. RPAPL § 1304

Strict compliance with RPAPL § 1304 is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition. U.S. Bank Trust, N.A. v. Chiramannil, 205 A.D.3d 966, 967 (2d Dept. 2022); Bank of N.Y. Mellon v. Porfert, 187 A.D.3d 1110, 1115 (2d Dept. 2019); Wells Fargo Bank, NA v. Mandrin, 160 A.D.3d 1014, 1015-1016 (2d Dept. 2018). Strict compliance includes the method of service prescribed in RPAPL § 1304 (2) (Wells Fargo Bank, N.A. v. Trupia, 150 AD3d 1049, 1050-1051 [2d Dept 2017]), as well as the form and content of the notices. See, Bank of Am. Natl. Assn. v. Wheatley, 158 A.D.3d 736, 738 (2d Dept 2018).

"RPAPL 1304 requires that at least 90 days before a lender, assignee or mortgage loan servicer commences an action to foreclose on a home loan, said entity must give notice to the borrower." Porfert, supra, 187 A.D.3d at 1111-1112. It specifically mandates that (1) the 90 day notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower and also to the "residence that is the subject of the mortgage" and (2) that the notices be sent "in a separate envelope from any other mailing or notice." Wells Fargo Bank v. Yankowitz, 199 A.D.3d 126, 135 (2d Dept. 2021). See, Mandrin, supra, 160 A.D.3d at 1016; Trupia, supra, 150 A.D.3d at 1050.

A plaintiff may establish compliance with section 1304 by providing proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. Mandrin, supra, 160 A.D.3d at 1016. See also, Chiramannil, supra, 205 A.D.3d at 966-967; M&T Bank v Joseph, 152 A.D.3d 579 (2017); Trupia, supra, 150 A.D.3d at 1050-1051; Citibank, N.A. v Wood, 150 A.D.3d 813, 814 (2d Dept. 2017). At trial, the plaintiff may show compliance by presenting the testimony of a witness with personal knowledge that the notices at issue were actually mailed, or proof of the actual mailing or delivery by the United States Postal Service, such as, for example, " 'domestic return receipts with attendant signatures.' " Ditech Fin. LLC v. Brown ex rel. IRS, 2020 N.Y. Misc LEXIS 50696 at 16 (Sup. Ct. Westchester County 2020), quoting Mandrin, supra, 160 A.D.3d at 1016.

A plaintiff may also submit documents evincing that the notices were properly mailed, provided that such documents are found to be admissible pursuant to CPLR 4518 as business records as an exception to the rule against hearsay. Ditech Fin. LLC v. Brown ex rel., supra. Where a plaintiff relies upon the admission of business records and proof of mailing, it must also "establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed." Wells Fargo Bank, N.A. v. Moran, 168 A.D.3d 1128, 1129 (2d Dept. 2019). Such proof must include the sworn statement of a witness "with personal knowledge of the procedure." Id.

Plaintiff called Pete Rothacker who, at the time of the trial, was the director of client services at Covius Services LLC and had been with the company for five years at the time at the time of the sending of the default letter in 2010. He previously served as an account and relationship manager, so he has always been working with clients and "relying on those business records" to serve the clients (Tr. 6/18/19 at 114). He explained that Covius was originally known as LenderLive Services LLC but simply "rebranded" its name as Covius in October 2018. He stated that Walz Group LLC, the company retained by Mr. Cooper to complete service of the documents in this case, was acquired by LenderLive in the summer of 2015. Rothacker testified that "Walz, Covius, LenderLive, it's all the same." Id. at 113. Throughout the trial, the parties referred to Walz Group, LenderLive and Covius interchangeably.

Rothacker described the role of Walz in printing and mailing default notices. He testified that he was familiar with Walz's business practices and provided testimony regarding these practices, including the procedures for generating and mailing the 30 and 90 day notices and default notices, as well as the quality control measures in place. He stated that Walz was retained by the loan servicer, Mr. Cooper, formally known as Nationstar, to print and complete service of the notices. Rothacker explained that Walz did not effectuate service directly but instead used information provided by loan servicers to generate templated default notices, which were then mailed to the defendants through a third-party vendor, Pitney Bowes. He identified the 30 (Exh. 9) and 90 (Exh. 10) day notices sent out to defendants.

According to Rothacker, Walz used Mr Cooper's template, merging loan servicver-provided data into the documents, while also adding additional information as needed. Mr. Cooper provided sample data to Walz, which Walz incorporated into the templates. Samples of these templates were sent to Mr. Cooper for approval before the final letters were mailed. Rothacker identified all the notices that were sent to defendants via first class and certified mail. He also described the tracking process in detail, explaining that each page of the notices included a barcode. After the letters were inserted into envelopes, the barcodes were scanned to ensure nothing was missing. This process included tracking the green card certified mail return receipt, enabling Walz to monitor every letter before it left the facility and was handed over to the U.S. Postal Service. The court admitted plaintiff's Exhibits 9 and 10 into evidence. It was noted that Rothacker was not offering his testimony as to the truth of the information Nationstar provided him but merely was a "conduit" by which he put the Nationstar information into evidence and showed that the notices were properly mailed.

Rothacker stated that Pitney Bowes, an associate or partner of the U.S. Postal Service, picked up the sealed envelopes from the Walz facility and then delivered them for mailing to the U.S. Postal Service. As part of this process, Walz generated a form known as a "mail book" or "mail log," which is an official U.S. Postal Service form known as "PS Form 3877." The mail book accompanies all trays of certified mail delivered to the U.S. Postal Service and lists every letter in the tray. When the mail is presented to the U.S. Postal Service, the postal clerk reviews the letters and validates that every piece of mail is in the tray by stamping the book. Rothacker referred to this as "proof of mailing." Id. at 182. According to Rothacker, the mail book was presented to the postal clerk for stamping by Pitney Bowes and then returned to Walz and incorporated into its records. Plaintiff submitted the subject mail book, which was entered into evidence as Exhibit 13. The mail book bore a stamp on the first and last page with the date of the mailing and the letters "USPS." It lists the certified mailings, along with their tracking numbers, the addresses of the recipients, and postage fees.

Plaintiff also introduced a transaction report pertaining to the mailing of the notices (Exh. 11) and a transaction detail for the certified mailings (Exh. 12). The transaction report lists the certified and first-class mailings, including the tracking numbers, mailing dates, and reported postal status. Rothacker indicated that the tracking number on the 16 individual letters in this matter were the same as the those included in the transaction report. For the certified mailings, the accompanying transaction detail provides step-by-step tracking data showing their mailing and processing. Rothacker explained that the data is transmitted directly from the U.S. Postal Service via a secure transmission and automatically incorporated into the transaction report. The tracking numbers shown in the report correspond to those appearing on the 90 day notices. There were also corresponding transaction information and a mail book for the 30 day notices (Exh. 14 and 15).

Based upon the foregoing, the court finds that plaintiff has "strictly complied" with RPAPL § 1304 by providing both copies of the actual notices timely mailed to defendants via first-class and certified mail, and submitting evidence of "a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure." Mandrin, supra, 160 A.D.3d at 1016. See also, Wells Fargo Bank v. Yankowitz, 199 A.D. 3d 126, 135 (2d Dept. 2021). Contrary to defendants' contention that testimony from Pitney Bowes is necessary to establish proper mailing, Rothacker's testimony is sufficient because all of the records discussed were incorporated into Walz's records and routinely relied upon by Walz in its own business. Gordon, supra, 171 A.D.3d at 209.

Conclusion

Plaintiff established its entitlement to foreclose on the mortgage because it demonstrated possession of the note, the mortgage, and evidence of default. See, Heiney, supra, 168 A.D.3d at 1127. Plaintiff also established proper mailing of the 30 and 90 day notices. Mandrin, supra, 160 A.D.3d at 1016. Although defendants have raised several purported inadequacies relating to service of process, these alleged defects are minor and insufficient to rebut plaintiff's prima facie showing. As plaintiff has satisfied the requirements articulated in the Second Department case law, judgment is awarded in its favor.

Dated: January 22, 2025

Hon. Katherine A. Levine, J.S.C.

Katherine A. Levine, J.