CIT Bank N.A. v. Schiffman
948 F.3d 529
2d Cir.2020Background
- In 2008 Pamela Schiffman executed a $326,000 note secured by a mortgage on a Brooklyn home; Pamela and Jerry later signed a Consolidation, Extension, and Modification Agreement and a 2014 Loan Modification listing both as "Borrower."
- The Schiffmans defaulted on payments beginning December 1, 2014; CIT Bank (successor to OneWest) commenced foreclosure in October 2016 and moved for summary judgment in February 2018.
- CIT submitted an affidavit from Assistant Secretary Rachel Hook attesting to a standard office mailing procedure and stating that § 1304 (90‑day) notices were mailed to both Pamela and Jerry on November 18, 2015; copies of the notices and a § 1306 filing (dated November 18, 2015) listing only Pamela were also produced.
- The district court adopted the magistrate judge’s Report & Recommendation and granted summary judgment for CIT; the Schiffmans appealed, challenging compliance with RPAPL §§ 1304 and 1306.
- The Second Circuit found unsettled questions of New York law—(1) what showing a defendant must make to rebut the presumption of receipt when plaintiff relies on a standard office mailing procedure under § 1304, and (2) whether § 1306 filings must identify all borrowers—and certified both questions to the New York Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CIT proved § 1304 compliance by proof of a standard office mailing procedure | Hook affidavit describing standard procedures plus copies of notices and proof of certified/first‑class mail show compliance and presumed receipt | Notices dated ~11/18/2015 were created nearly a year after default; affidavit omits mailing‑step detail and initial statement that notices are "created upon default," so presumption may be rebutted | Second Circuit declined to decide; found affidavit largely sufficient but expressed concern about the date gap and certified to NY Court of Appeals the question what showing a defendant must make to rebut the presumption of receipt when plaintiff relies on routine mailing procedures under § 1304 |
| Whether § 1306 requires listing all borrowers on the filing with the Superintendent | § 1306 filing was timely and listed Pamela; plaintiff treated that as sufficient | Filing omitted Jerry though he appears as borrower in modification agreements; Schiffmans argue § 1306 should cover all borrowers | Second Circuit did not decide; certified to NY Court of Appeals whether § 1306 requires reporting information for all borrowers on a loan or only one borrower |
Key Cases Cited
- Nassau Ins. Co. v. Murray, 386 N.E.2d 1085 (N.Y. 1978) (routine office practice gives rise to presumption of receipt; presumption rebuttable by showing practice not followed or was careless)
- Citibank, N.A. v. Conti‑Scheurer, 98 N.Y.S.3d 273 (2d Dep't 2019) (proof of standard office mailing procedure can establish § 1304 compliance)
- Deutsche Bank Nat. Tr. Co. v. Spanos, 961 N.Y.S.2d 200 (2d Dep't 2013) (plaintiff bears burden to establish § 1304 notice as a condition precedent)
- Aurora Loan Servs., LLC v. Weisblum, 923 N.Y.S.2d 609 (2d Dep't 2011) (New York courts have required strict compliance with § 1304 as to all borrowers)
- Wells Fargo Bank, N.A. v. Heiney, 93 N.Y.S.3d 84 (2d Dep't 2019) (affidavit describing electronic creation, dating, addressing, and mailing procedures found sufficient for § 1304 compliance)