More Problems With The 90-Day Notice – How To Prove It Was Sent

Two new cases confirm that sending the 90-day notice is a condition precedent to initiate a home loan mortgage foreclosure action, that failure to do so will defeat summary judgment and effectively defeat the case.  [Citibank, N.A. v. Wood, 150 A.D.3d 813, 55 N.Y.S.3d 109 (2d Dept. 2017); Wells Fargo Bank, N.A. v. Trupia, 150 A.D.3d 1049, 55 N.Y.S.3d 134 (2d Dept. 2017)]

This is hardly welcome for lenders, but it is not new.  What is perhaps portentous is the more obscure issue of how to prove that the 90-day notice was sent.  Each lender failed on that point in the cited cases.

In the Citibank case the court held that the plaintiff had failed to submit an affidavit of service or any other proof of mailing by the post office showing that it properly served the borrower according to the statute.  Rather, the affidavit of an officer referenced supposed tracking numbers stamped on the notice which was held insufficient to show that the notice was sent in the manner required by the statute because the loan servicer did not provide proof of a standard office mailing procedure and offered no independent proof of the actual mailing.

In the Wells Fargo case, the plaintiff submitted an affidavit of an officer stating that she had reviewed the 90-day notice sent to the borrower on a certain date to the last known address by first class mail and certified mail.  Annexed to that affidavit was a copy of that notice along with a copy of the certified mail receipt and the certified mail number, but the receipt contained no language indicating that it was issued by the United States Postal Service.  The court held that although mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay, here the officer did not claim that she was familiar with the plaintiff’s mailing practices and procedures and consequently did not establish proof of standard office practice and procedure designed to ensure that items are properly addressed and mailed.  In the end, the plaintiff was simply unable to support the officer’s assertion that the notice mailed to the borrower by first class mail.

All of this readily suggests that foreclosing plaintiff’s will need to have procedures in place to ensure that actual proof of a mailing according to the statute can be presented to a court when a borrower claims that the 90-day notice was not sent.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2017), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.