AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST v. JPMORGAN CHASE BANK NATIONAL ASSOCIATION WASHINGTON MUTUAL BANK FA ICB LEASING CORP UNITY BANK NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE JANE DOE (2022)

The history of this action to foreclose a mortgage on real property known as 14 Sleepy Lane, Melville, Suffolk County, New York ("the property") is set forth in the prior decisions of this court (Hudson, A.S.J.) dated June 26, 2018 (Mot. Seq. No. 001) and September 9, 2020 (Mot. Seq. # 002). Those decisions set the default of the non-appearing, non-answering defendants, amended the caption to substitute Federal National Mortgage Association ("Fannie Mae") for the original plaintiff PHH Mortgage Corp. ("PHH"-Mot. Seq. #001), subsequently amended the caption to substitute U. S. Bank Trust, N. A., as Trustee For LSF9 Master Participation Trust ("plaintiff") as plaintiff (Mot. Seq. #002) and granted plaintiff partial summary judgment striking and dismissing answering defendant Stella Lykos' ("defendant") affirmative defenses other than that which raised plaintiff's predecessor's failure to comply with the mailing requirements of RPAPL § 1304.

Plaintiff filed a note of issue and the case was assigned to this part to try this sole remaining issue. That non-jury trial was held before this on November 14, 2022.

TRIAL

Plaintiff called an employee of Fay Servicing, LLC ("Fay") plaintiff's present servicer, Janet Gioello. She testified to her familiarity with Fay's business practices and record keeping procedures, establishing her ability to testify to Fay's business records pursuant to CPLR 4518 (a). Through her testimony plaintiff submitted into evidence the Limited Power of Attorney that plaintiff had executed to Fay in March 2021, which listed the LSF9 Master Participation Trust as one of the trusts to which the power of attorney applied. Ms. Gioello also testified to the history of the servicers representing plaintiff's predecessors, and the practice of Fay in "boarding" of those servicers' records into their Fay's own business records in conformity with the procedures set forth in Bank of New York, Mellon v. Gordon, 171 AD3d 197 (2d Dept 2019), making them admissible as Fay's business records. Among these records were the records of PHH.

Through Ms. Gioello's testimony and the application of CPLR 4518 (a), the copies of the RPAPL § 1304 notices purportedly mailed by both regular and certified mail to defendant by PHH were admitted into evidence . Each letter was addressed solely to defendant at the property, the content of each letter was in conformity with the language of the statute, contained no extraneous language or other notices, and along with each was a list of housing counseling agencies servicing the area where the property was located.  ¹ The court finds no defect in the notices.

Also admitted into evidence as "boarded" by Fay were PHH's records of the "Track Right" system used by its mailing vendor "Walz" (see Citimortgage, Inc. v Leitman, 201AD3d 846 [2d Dept 2022]). Here, unlike in Leitman, Ms. Gioello established her familiarity with "Walz" mailing practices and procedures, as she had been trained in those procedures by "Walz" when working for a prior employer. She explained the mailing processes to ensure proper addressing and mailing and referred to the records that established the mailings of the RPAPL § 1304 notices by both regular and certified mail which were in evidence. Such testimony established the mailing of the notices by both regular mail and certified mail to defendant at the property (Wells Fargo Bank, N.A. v Benitez, 194 AD3d 986 [2d Dept 2021]).Accordingly, plaintiff having established the mailing of the notices in proper form, it is entitled to judgment in its favor, and it is

ORDERED that plaintiff is to settle an order of reference pursuant to RPAPL § 1321 for the court's signature within thirty (30) days of this decision, and upon compliance with the terms therein, shall submit a judgment of foreclosure and sale.

This constitutes the decision and order of the Court.

Dated: November 15, 2022

_______________________________________

Hon. Robert F. Quinlan, J.S.C.

FOOTNOTES

1.   The court notes that defendant never challenged that at the time of the mailings the property was located in the Long Island Region - Nassau and Suffolk Counties.

Robert F. Quinlan, J.