Aurora Loan Services, LLC v. Weisblum
85 A.D.3d 95
N.Y. App. Div.2011Background
- Foreclosure action by Aurora against the Weisblums involving a consolidated note and CEMA; MERS as nominee with multiple assignments; RPAPL 1303 notice served with summons and complaint on blue paper; RPAPL 1304 notice 90-day pre-suit requirement at issue, including lack of counseling list and service defects; Weisblums challenge standing and sufficiency of assignments; court proceedings culminated in renewal and reversal determining 1304 was a mandatory condition precedent; appeal dismissed and cross-motions resolved.
- Aurora sought summary judgment asserting proper RPAPL 1303 and 1304 compliance and standing; Weisblums argued improper 1303/1304 service and lack of proper assignment proof; 1304 notice allegedly not sent to Patti Weisblum and missing counseling agency list; 1303 service included affiants of service and colored paper, which Weissblums contested.
- Court held RPAPL 1303 notice properly served as a condition precedent to commencement; RPAPL 1304 notice is also a mandatory condition precedent requiring proper service to both borrowers with statutorily required content; Aurora failed to prove proper 1304 service to Patti Weisblum and to provide the counseling list or service affidavits; standing failed due to lack of proof of assignment/ownership of the entire note and mortgage; outcome was dismissal of the action against the Weisblums on these grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is RPAPL 1303 service a condition precedent to foreclosure? | Aurora complied with 1303; affidavits show proper service on both borrowers. | Weisblums contend improper service (color paper issue) and noncompliance. | Yes; 1303 service satisfied as a condition precedent. |
| Is RPAPL 1304 service a mandatory condition precedent requiring proper service to both borrowers? | Aurora argues 1304 notice was sent to the applicable borrower(s). | Lack of service to Patti and missing counseling list. | Yes; failure to properly serve 1304 requires dismissal. |
| Did Aurora have standing to commence the action given assignments? | Aurora asserts holder of the consolidated note and mortgage by delivery. | No valid proof of assignment/authority to transfer the note and entire mortgage. | Aurora failed to prove standing; action dismissed to the extent against Weisblums. |
| Did post-commencement recording of an assignment defeat standing or render 1304 issues moot? | Court denied; standing required pre-commencement proof; 1304 defect cannot be cured by later events. |
Key Cases Cited
- First Natl. Bank of Chicago v Silver, 73 A.D.3d 162 (N.Y. App. Div. 2010) (RPAPL 1303 and 1304 are preconditions to foreclosure; defects require dismissal)
- Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983 (N.Y. App. Div. 2010) (Affirmative proof of proper service and content of RPAPL 1303 notices; presumption of proper service from affidavits)
- Deutsche Bank Natl. Trust Co. v. Hussain, 78 A.D.3d 989 (N.Y. App. Div. 2010) (Presumption of proper service from affidavits; bare denial insufficient)
- U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752 (N.Y. App. Div. 2009) (Assignment issues and standing analyzed in context of note/mortgage)
- Wells Fargo Bank, N.A. v. Marchione, 69 A.D.3d 204 (N.Y. App. Div. 2009) (Standing requires proper assignment or delivery of note)
- Bank of Am., N.A. v. Guzman, 26 Misc.3d 922 (N.Y. Sup. Ct. 2009) (Notice compliance and pleading requirements under RPAPL 1302/1304)