WELLS FARGO BANK v. CURTIS (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Suffolk County (S. Betsy Heckman Torres, J.), entered September 23, 2024.  The order and judgment of foreclosure and sale, upon an order of the same court (Howard H. Heckman, Jr., J.) dated September 17, 2019, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint and for an order of reference and denying that branch of the defendant's cross-motion which was for summary judgment dismissing the complaint, upon an order of the same court (Howard H. Heckman, Jr., J.) also dated September 17, 2019, inter alia, granting the same relief to the plaintiff and referring the matter to a referee to compute the amount due to the plaintiff, and upon an order of the same court (S. Betsy Heckman Torres, J.) dated September 17, 2024, granting the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale and denying the defendant's cross-motion to reject the referee's report, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint and for an order of reference are denied, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied as academic, and the orders dated September 17, 2019, and September 17, 2024, are modified accordingly.

In August 2010, the plaintiff commenced this action against the defendant to foreclose a mortgage on certain real property located in Selden.  The defendant interposed an answer in which he asserted various affirmative defenses.

In February 2019, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference.  The defendant cross-moved, among other things, for summary judgment dismissing the complaint for failure to comply with RPAPL 1304.  In an order dated September 17, 2019, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied that branch of the defendant's cross-motion.  In a second order dated September 17, 2019, the court, among other things, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff.

In November 2022, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale.  The defendant cross-moved to reject the referee's report.  In an order dated June 20, 2023, the Supreme Court denied the plaintiff's motion, granted the defendant's cross-motion, and remitted the matter to the referee for a new report.

The referee subsequently issued a new report, and in April 2024, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale.  The defendant cross-moved to reject the referee's report.  In an order dated September 17, 2024, the Supreme Court granted the plaintiff's motion and denied the defendant's cross-motion.  Also on September 17, 2024, the court issued an order and judgment of foreclosure and sale granting the plaintiff's motion, confirming the referee's report, and directing the sale of the property.  The defendant appeals.

“Proper service of [an] RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action” (Wells Fargo Bank, N.A. v. McMahon, 202 AD3d 886, 887;  see USBank N.A. v. Haliotis, 185 AD3d 756, 758).  “The statute requires that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower” (Wells Fargo Bank, N.A. v. McMahon, 202 AD3d at 887;  see RPAPL 1304[2] ).  “Additionally, RPAPL 1304(2), as it existed at the time this action was commenced, provided that the 90–day notices ‘shall contain a ․ list of at least five housing counseling agencies' as designated by the division of housing and community renewal, that serve the region where the borrower resides” (Wells Fargo Bank, N.A. v. McMahon, 202 AD3d at 887, quoting RPAPL former 1304[2];  see L 2009, ch 507, § 1–a [eff Jan. 14, 2010] ).

Here, in support of its motion, inter alia, for summary judgment on the complaint, the plaintiff submitted, among other things, an affidavit of Shae Smith, a vice president of loan documentation for the plaintiff, who averred therein that a 90–day notice was mailed to the defendant on April 14, 2010.  Smith annexed to the affidavit a copy of the notice, which included a list of 17 “HUD Approved Housing Counseling Agencies.”  However, the plaintiff failed to establish, prima facie, that, of the 17 agencies listed in the RPAPL 1304 notice to the defendant, at least 5 of those agencies served the region where the defendant resided (see Wells Fargo Bank, N.A. v. McMahon, 202 AD3d at 888;  U.S. Bank, N.A. v. Gordon, 202 AD3d 872;  US Bank N.A. v. Gurung, 196 AD3d 617, 618;  USBank N.A. v. Haliotis, 185 AD3d at 758).  Contrary to the plaintiff's contention, the failure to provide a list of five housing counseling agencies as required by the statute is not a defect that may be disregarded pursuant to CPLR 2001 (see U.S. Bank N.A. v. Gordon, 202 AD3d at 874;  cf.  Bank of Am., N.A. v. Barnett, 241 AD3d 1234, 1236).

Since the plaintiff failed to establish its strict compliance with RPAPL 1304, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint and for an order of reference without regard to the sufficiency of the defendant's opposition papers (see Deutsche Bank Natl. Trust Co. v Goetz, 239 AD3d 934, 937;  Wells Fargo Bank, N.A. v. McMahon, 202 AD3d at 888).

The Supreme Court properly denied that branch of the defendant's cross-motion which was for summary judgment dismissing the complaint for failure to comply with RPAPL 1304.  The defendant failed to establish, prima facie, that the plaintiff did not provide a complete list of housing agencies as required by the statute through the submission of evidence demonstrating that the housing agencies in the list provided by the plaintiff did not service the Long Island region or that he had contacted the agencies and was denied assistance because the property was located in the Long Island region (see U.S. Bank N.A. v. Gordon, 202 AD3d at 875).

The defendant's remaining contention need not be reached in light of our determination.

BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur.