Wells Fargo Bank, N.A., etc., respondent, v. Paulette L. Dorlouis, etc., et al., appellants, et al., defendants. (2026)

Argued—December 4, 2025

DECISION & ORDER

Q/

In an action to foreclose a mortgage, the defendants Paulette L. Dorlouis and Raymond Roberty appeal from two orders of the Supreme Court, Kings County (Larry D. Martin, J.), both dated October 3, 2023.  The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Paulette L. Dorlouis and Raymond Roberty and for an order of reference and denied those defendants' cross-motion for summary judgment dismissing the complaint insofar as asserted against them.  The second order, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to compute the amounts due to the plaintiff.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

In February 2019, the plaintiff commenced this action against the defendants Paulette L. Dorlouis and Raymond Roberty (hereinafter together the defendants), among others, to foreclose a mortgage on certain real property located in Brooklyn.  The defendants joined issue by interposing separate answers wherein they asserted various affirmative defenses, including, as relevant to this appeal, that the plaintiff lacked standing.

In June 2022, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference.  The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against them for lack of standing and failure to comply with RPAPL 1304 and 1306.

In an order dated October 3, 2023, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the defendants' cross-motion.  In a second order also dated October 3, 2023, the court, among other things, granted the same relief to the plaintiff and appointed a referee to compute the amounts due to the plaintiff.  The defendants appeal.

“A plaintiff moving for summary judgment in an action to foreclose a mortgage establishes its prima facie case by producing the note, the mortgage, and evidence of default” (Wells Fargo Bank, N.A. v. Dupont, 240 AD3d 550, 551;  see U.S. Bank N.A. v. Medina, 230 AD3d 1371, 1375).  Additionally, where, as here, the plaintiff's standing has been placed in issue by a defendant's answer, the plaintiff also must prove its standing as part of its prima facie showing (see Bank of Am., N.A. v. Barnett, 241 AD3d 1234, 1236;  Wells Fargo Bank, N.A. v. Dupont, 240 AD3d at 552).

“ ‘A plaintiff may establish a payment default by an admission made in response to a notice to admit, by an affidavit from a person having [personal] knowledge of the facts, or by other evidence in admissible form’ ” (Bank of N.Y. Mellon v. Tedeschi, 240 AD3d 466, 468, quoting Bank of N.Y. Mellon v. Gordon, 171 AD3d 197, 208;  see Viviane Etienne Med. Care, P.C. v Country–Wide Ins. Co., 25 NY3d 498, 507–508).

Here, the plaintiff established, prima facie, the defendants' payment default by submitting an affidavit of Gina Feezer, an employee of the plaintiff's prior loan servicer, with a copy of an extract of the subject loan's payment history annexed to it.  Notably, the defendants did not object to the plaintiff's submission of Feezer's affidavit, despite it being submitted for the first time in reply, and do not argue on appeal that it was improperly submitted for the first time with reply papers (see U.S. Bank N.A. v. Pickering–Robinson, 197 AD3d 757, 760–761;  LNV Corp. v. Sofer, 171 AD3d 1033, 1036).  Moreover, the defendants had the opportunity to respond to Feezer's affidavit in their reply papers in further support of their cross-motion, but they did not do so (see U.S. Bank N.A. v. Pickering–Robinson, 197 AD3d at 761;  LNV Corp. v. Sofer, 171 AD3d at 1036).  The defendants' contention that Feezer's affidavit failed to state that it was sworn to under penalties of perjury is improperly raised for the first time on appeal and not properly before this Court (see Mitzmacher v. Bay Country Owners, 211 AD3d 1025, 1027).  Contrary to the defendants' contention, the affidavit and annexed business record were admissible (see Bank of N.Y. Mellon v. Gordon, 171 AD3d at 205–208;  see also U.S. Bank N.A. v. Pickering–Robinson, 197 AD3d at 760–761).

“ ‘A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note’ ” (Avail 1, LLC v. Singh, 239 AD3d 927, 928, quoting Dyer Trust 2012–1 v. Global World Realty, Inc., 140 AD3d 827, 828;  see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361–362).  “ ‘Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident’ ” (DBI/ASG Mtge. Holdings, LLC v. Tachtchouk, 241 AD3d 870, 872 [internal quotation marks omitted], quoting U.S. Bank N.A. v. Fabbro, 192 AD3d 1178, 1179;  see Aurora Loan Servs., LLC v. Taylor, 25 NY3d at 361–362).

Here, the plaintiff established, prima facie, its standing by demonstrating that a copy of the note, endorsed in blank, was annexed to the summons and complaint when it commenced the action (see Metropolitan Life Ins. Co. v Benton, 241 AD3d 818, 819–820;  Bayview Loan Servicing, LLC v. Ashkenazi, 233 AD3d 955, 957).  “[S]ince standing was established by the annexation of the note to the complaint, the admissibility and sufficiency of the affidavit [submitted in support of the motion] is irrelevant” (Deutsche Bank Trust Co. Ams. v. McDonald, 216 AD3d 735, 738 [alteration and internal quotation marks omitted] ).  Similarly, because the plaintiff established, as a matter of law, that it had standing through physical possession of the note, the validity of any prior assignments is irrelevant to its standing (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d at 362).

“RPAPL 1304 requires that, at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer give notice to the borrower.  The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower” (Federal Natl. Mtge. Assn. v. Young, 207 AD3d 442, 443;  see RPAPL 1304[1], [2];  Wall St. Mtge. Bankers, Ltd. v. Berquin, 213 AD3d 972, 974).  “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” (Citibank, N.A. v. Conti–Scheurer, 172 AD3d 17, 20;  see MLB Sub I, LLC v. Mathew, 202 AD3d 1078, 1079), “and the plaintiff has the burden of establishing satisfaction of this condition” (Wall St. Mtge. Bankers, Ltd. v. Berquin, 213 AD3d at 974 [internal quotation marks omitted] ).  “Alternatively, the plaintiff bears the burden of establishing, prima facie, that RPAPL 1304 is inapplicable, as the loan is not subject to the notice requirements set forth in RPAPL 1304” (id. [internal quotation marks omitted] ).  “Home loan” is defined as a loan, inter alia, that is secured by a mortgage on real estate “which is or will be occupied by the borrower as the borrower's principal dwelling” (RPAPL 1304[6][a][1][iii];  see MLB Sub I, LLC v. Mathew, 202 AD3d at 1080).

Here, by submitting, inter alia, the “1—4 FAMILY RIDER,” which deleted the occupancy-by-borrower requirement in the mortgage, the plaintiff demonstrated that the property being foreclosed was not the defendants' principal dwelling and, thus, that the subject loan was not a “home loan” within the meaning of RPAPL 1304 (see Wall St. Mtge. Bankers, Ltd. v Berquin, 213 AD3d at 975;  MLB Sub I, LLC v. Mathew, 202 AD3d at 1080).  Accordingly, the plaintiff established, prima facie, that the notice requirement of RPAPL 1304 was inapplicable (see Wall St. Mtge. Bankers, Ltd. v Berquin, 213 AD3d at 975;  MLB Sub I, LLC v. Mathew, 202 AD3d at 1080).  Since RPAPL 1306 “is triggered by RPAPL 1304,” and RPAPL 1304 does not apply here, RPAPL 1306 is also inapplicable (B & H Florida Notes LLC v. Ashkenazi, 149 AD3d 401, 402;  see Deutsche Bank Natl. Trust Co. v George, 191 AD3d 639, 640–641).

The defendants' remaining contentions are not properly before this Court.

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court