Motion for Writ in Pnc Bank, National Association v. Kevin Valentine, Jamise Valentine, Cach, Llc, Babbar And Associates P.C., Household Finance Realty Corporation Of New York, John Doe| Trellis.Law

On April 26, 2023 a Motion-Secondary was filed involving a dispute between Pnc Bank, National Association, and Babbar And Associates P.C., Cach, Llc, Household Finance Realty Corporation Of New York, Jamise Valentine, John Doe, Kevin Valentine, for Real Property - Mortgage Foreclosure - Residential in the District Court of Nassau County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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PNC BANK, NATIONAL ASSOCIATION

Plaintiff,
vs
INDEX #: 606687/2023
KEVIN VALENTINE, JAMISE VALENTINE,
CACH, LLC, BABBAR AND ASSOCIATES MORTGAGED PREMISES:
P.C., HOUSEHOLD FINANCE REALTY 106 Munro Boulevard
CORPORATION OF NEW YORK Valley Stream, NY 11581

JOHN DOE (Those unknown tenants, occupants,
persons or corporations or their heirs,
distributees, executors, administrators, trustees,
guardians, assignees, creditors or successors
claiming an interest in the mortgaged premises.)

Defendant(s).
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MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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INTRODUCTION

This is a foreclosure action. Defendants Kevin Valentine and Jamise Valentine are the owners

and mortgagors of real property located in Valley Stream, New York. PNC Bank, National Association

(the “Plaintiff”) submits this memorandum of law in support of its motion for summary judgment

pursuant to New York Civil Practice Law and Rules (“CPLR”) §3212, on its complaint against

defendants Kevin Valentine and Jamise Valentine (the “Defendants”) §3211(b) for the dismissal of the

affirmative defenses set forth in the Defendants’ answer served on September 27, 2023; for a default

judgment pursuant to CPLR §3215 for all non-answering defendants; and for the appointment of a

Referee to determine the amount due and ascertain whether the premises can be sold in parcels, pursuant

to RPAPL §1321.

ARGUMENT

Summary Judgment Standard

Summary judgment is appropriate when there is no issue of material fact and the movant is

entitled to judgment as a matter of law. CPLR §3212; Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562,

427 N.Y.S.2d 595, 598 (1980); St. Claire v. Empire Gen. Contr. & Painting Corp., 33 A.D.3d 611, 821

N.Y.S.2d 471 (2d Dept. 2006). A movant has the initial burden of showing that no genuine issue of

material fact exists. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 (1986). The

burden then shifts to the party opposing the motion for summary judgment to come forth with evidence,

in admissible form, showing the existence of a triable issue of fact. See Bercy Investors, Inc. v. Sun, 239

A.D.2d 161, 657 N.Y.S.2d 47 (1st Dept. 1997); Fed. Home Loan Mortg. Corp. v. Karastathis, 237

A.D.2d 558, 655 N.Y.S.2d 631 (2d Dept 1997). But conclusory allegations unsupported by competent

evidence are insufficient to defeat a motion for summary judgment. Alvarez, 68 N.Y.2d at 324-25, 508

N.Y.S.2d at 925; Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d at 598. Rather, dispositive motions based

upon debt instruments will be granted unless a defendant brings forth demonstrative proofs beyond

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“shadowy and conclusory statements.” Hogan & Co. v. Saturn Mgmt. Inc., 78 A.D.2d 837, 433

N.Y.S.2d 168, 169 (1st Dept. 1980).

Plaintiff is Entitled to
Summary Judgment and the Appointment of a Referee

A plaintiff’s right to judgment of foreclosure is established as a matter of law through the

production of the unpaid note, mortgage and evidence of the mortgagor's default, thereby shifting the

burden to the defendant to demonstrate, through both competent and admissible evidence, any defense

which could raise a question of fact. See Emigrant Mtge. Co., Inc. v Beckerman, 105 A.D.3d 895, 964

N.Y.S.2d 548 (2d Dept 2013); Solomon v Burden, 104 A.D.3d 839, 961 N.Y.S.2d 535 (2d Dept 2013);

US Bank Natl. Ass'n. v Denaro, 98 A.D.3d 964, 950 N.Y.S.2d 581 (2d Dept 2012); Citibank, N.A. v Van

Brunt Props., LLC, 95 A.D.3d 1158, 945 N.Y.S.2d 330 (2d Dept 2012); HSBC Bank v Schwartz, 88

A.D.3d 961, 931 N.Y.S.2d 528 (2d Dept 2011); US Bank N.A. v Eaddy, 79 A.D.3.d 1022, 1022, 914

N.Y.S.2d 901 (2010).

Plaintiff has established its prima facie entitlement to summary judgment by submitting the Note,

the Mortgage, and evidence of the Kevin Valentine and Jamise Valentine’s default. (Wysong Aff., Exs.

1, 3 and 4); See CPLR §3212; RPAPL §1321; Neighborhood Hous. Serv. of New York City v Hawkins,

97 A.D.3d 554, 947 N.Y.S.2d 321 (2d Dept 2012); Baron Assoc., LLC v Garcia Group Enters., 96

A.D.3d 793, 946 N.Y.S.2d 611(2d Dept 2012); Citibank, N.A. v. Van Brunt Props., LLC, supra. The

burden then shifts to the Defendants to substantiate a defense with evidentiary proof in admissible form

sufficient to require a trial of defenses. See DiNardo v. Patcam Serv. Station, Inc, 228 A.D.2d at 543,

644 N.Y.S.2d at 780 (2d Dept. 1996); Metro. Distrib. Servs, Inc. v. DiLascio, 176 A.D.2d 312, 574

N.Y.S.2d 775 (2d Dept. 1991) (dismissing unsubstantiated affirmative defenses and granting summary

judgment in a foreclosure action).

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The Affirmative Defenses Do Not Bar Summary Judgment

The Defendants cannot meet the burden of substantiating the alleged defenses with evidentiary

proof in admissible form sufficient to require a trial. By failing to address, admitting to or generally

denying all of the allegations in the complaint, the Defendants have failed to raise any triable issue of

fact and Plaintiff’s motion should be granted in its entirety.

I. Plaintiff Commenced the Action within the Statute of Limitations

According to CPLR §213(4), an action upon a bond or note, the payment of which is secured by

a mortgage upon real property, must be commenced within six years. Reverse Mtge. Solutions, Inc. v.

Fattizzo, 172 A.D.3d 768, 769 (2d Dept. 2019) With respect to a mortgage payable in installments,

separate causes of action accrue for each installment that is not paid, and the statute of limitations begins

to run, on the date each installment becomes due. Nationstar Mortgage, LLC v Weisblum, 143 A.D. 3d

866, 867 (2d Dept. 2016); Wells Fargo Bank, N.A. v Burke, 94 A.D. 3d, 980, 982 (2d Dept. 2012); Wells

Fargo Bank, N.A. v Cohen, 80 A.D. 3d 753, 754 (2d Dept. 2011); Goldman Sachs Mtge. Co. v. Mares,

135 A.D. 3d 1121 (3d Dept. 2016); Ditech Fin., LLC v. Corbett, 166 A.D.3d 1568 (4th Dept. 2018)

However, even if a mortgage is payable in installments, the terms of the mortgage may contain an

acceleration clause that gives the lender the option to demand due the entire balance of principal and

interest upon the occurrence of certain events delineated in the mortgage. See 1 Bergman on New York

Mortgage Foreclosures §4.02; Burke at 982-983.

The Defendants failed and omitted to make the monthly mortgage loan installment due

December 1, 2017 and subsequent payments; the cause of action for the first unpaid installment accrued

when the December 1, 2017 installment was not paid. This action was commenced on April 26, 2023,

within the six-year limitations period. U.S. Bank N.A. v. Levy, 2020 N.Y. App. Div. LEXIS 3136 (2d

Dept. 2020) As a result, RPAPL §1501(4) is also rendered inapplicable. NMNT Realty Corp. v.

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Knoxville 2012 Trust, 151 A.D. 3d 1068, 1069 (2d Dept. 2017); Yadegar v. Deutsche Bank National

Trust Co., 164 A.D. 3d 945 (2d Dept. 2018); Lubonty v. U.S. Bank, N.A., 159 A.D. 3d 962 (2d Dept.

2018); Mizrahi v. U.S. Bank, N.A., 156 A.D. 3d 617, 618 (2d Dept. 2017); Caliguri v. Pentagon Federal

Credit Union, 168 A.D. 3d 802, 804 (2d Dept. 2019); Stewart Title Insurance Co. v. Bank of N.Y.

Mellon, 154 A.D. 3d 656, 664 (2d Dept. 2017); Caliguri v. JPMorgan Chase Bank, N.A., 121 A.D. 3d

1030, 1031 (2d Dept. 2014) Therefore, the Defendants’ first affirmative defense is meritless and must be

dismissed.

II. Plaintiff Had Capacity and Standing to Commence the Mortgage Foreclosure Action

Standing and capacity to sue are related, but distinguishable, legal concepts. Silver v Pataki, 96

N.Y. 2d 532, 537 (2001);Community Bd. 7 of Borough of Manhattan v Schaffer, 84 N.Y. 2d 148, 154-

155 (1994); Caprer v Nussbaum, 36 A.D. 3d 176, 181-182 (1st Dept. 2006); Wells Fargo Bank Minn. v.

Mastropaolo, 42 A.D. 3d 239, 242-243 (2d Dept. 2007) Although they are both components of a party's

authority to sue (Matter of Graziano v County of Albany, 3 N.Y. 3d 475, 479 (2004)), capacity requires

an inquiry into the litigant's status, i.e., its power to appear and bring its grievance before the court

(Schaffer at 155), while standing requires an inquiry into whether the litigant has an interest in the claim

at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the

litigant's request (Nussbaum at 182).

As the Court of Appeals opined in JPMorgan Chase Bank, N.A. v. Caliguri, 36 N.Y. 3d 953, 954

(2020), “there is no ‘checklist’ of required proof to establish standing.” However, in a mortgage

foreclosure action, a plaintiff establishes its standing to sue by demonstrating that, when the action was

commenced, it was the holder or assignee of the underlying promissory note. Aurora Loan Services,

LLC v. Taylor, 25 N.Y. 3d 355, 361-362 (2015) A written assignment of the underlying note or 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 instrument. Deutsche Bank Natl.

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Trust Co. v. Murray, 176 A.D. 3d 1172, 1173 (2d Dept. 2019); CitiMortgage, Inc. v Chow Ming Tung,

126 A.D. 3d 841, 842 (2d Dept. 2015); Taylor at 361-362. The Plaintiff established, prima facie, that it

had standing to prosecute this action by demonstrating that it was in physical possession of the Note,

which was annexed to the Complaint and CPLR §3012-b Certificate of Merit, at the time the action was

commenced. HSBC Bank USA N.A. v. Olivier, 113 N.Y.S. 3d 590, 591 (2d Dept. 2020); Wells Fargo

Bank, N.A. v. Zucker, 169 A.D. 3d 856, 857-858 (2d Dept. 2019); JPMorgan Chase Bank, N.A. v.

Weinberger, 142 A.D. 3d 643, 645 (2d Dept. 2016); Deutsche Bank National Trust Company v. Leigh,

137 A.D. 3d 841, 842 (2d Dept. 2016); PennyMac Corp. v. Chavez, 144 A.D. 3d 1006, 1007 (2d Dept.

2016); JPMorgan Chase Bank, N.A. v. Roseman, 137 A.D. 3d 1222, 1223 (2d Dept. 2015); Deutsche

Bank National Trust Company v. Garrison, 46 N.Y.S. 3d 185 (2d Dept. 2017); Wilmington Savings

Fund Society FSB v. Moran, 175 A.D. 3d 1196 (1st Dept. 2019)

An affidavit attesting to physical possession of the note prior to the commencement of the action

is also sufficient to establish physical delivery and thus standing, and the Plaintiff submitted the Wysong

Affidavit, in which Lori Wysong testified based upon the personal knowledge she acquired by

examining the business records relating to the subject mortgage loan that are made, kept, and maintained

in the ordinary course of business, the Plaintiff was in possession of the Note prior to and on the date

that this action was commenced. PNC Bank N.A. v. Salcedo, 161 A.D. 3d 571 (1st Dept. 2018); Flagstar

Bank, FSB v. Hart, 184 A.D. 3d 626, 627 (2d Dept. 2020); U.S. Bank Trust N.A. v. Moomey-Stevens,

168 A.D. 3d 1169 (3d Dept. 2019); Bank of N.Y. Mellon v. McClintock, 138 A.D. 3d 1372, 1374-1375

(3d Dept. 2016); U.S. Bank, N.A. v. Carnivale, 138 A.D. 3d 1220, 1221 (3d Dept. 2016) (the assistant

secretary’s testimony the plaintiff’s custodian and loan servicing agent received the original note on [a

specific date] and maintains possession of the note was sufficient to establish, prima facie, that the note

was delivered to plaintiff’s custodian prior to the commencement of the foreclosure action and remained

in its possession at the time the action was commenced); NNPL Trust Series 2012-1 v. Lunn, 151 A.D.

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3d 1969 (4th Dept. 2017) The Wysong Affidavit was sufficient, in and of itself, to establish the

Plaintiff’s standing as the holder of the Note.

Any contention the Plaintiff is required to give factual details as to the physical delivery of the

note is without merit because “an indorsement in blank specifies no particular indorsee and may consist

of a mere signature [and] an instrument payable to order and indorsed in blank becomes payable to

bearer and may be negotiated by delivery alone until specially indorsed. See UCC §3-204(2). There is no

requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must

establish how it came into possession of the instrument in order to be able to enforce it and it is

unnecessary to give factual details of the delivery in order to establish that possession was obtained prior

to a particular date. Taylor at 362. Furthermore, any contention concerning the validity of the

assignment of the mortgage is irrelevant to the Plaintiff’s standing because the Note, and not the

Mortgage, is the dispositive instrument that conveys standing to foreclose under New York law. Taylor

at 361 (the validity of the August 2009 assignment of the mortgage is irrelevant to Aurora’s standing)

Finally, despite the Defendants’ conjecture, they failed to demonstrate any entity other than the Plaintiff

claimed an interest in the Note and Mortgage, or an entitlement to payments on the mortgage debt, when

the action was commenced. Acocella v. Bank of N.Y. Mellon, 127 A.D. 3d 891, 893 (2d Dept. 2015);

Acocella v. Wells Fargo Bank, N.A., 139 A.D. 3d 647 (2d Dept. 2016); Jahan v. U.S. Bank, N.A., 127

A.D. 3d 926 (2d Dept. 2015) Therefore, the Defendants’ second affirmative defense is meritless and

must be dismissed.

III. Plaintiff Complied with RPAPL §1302

The Plaintiff complied with RPAPL §1302(1)(a) because the Complaint contained an affirmative

allegation that at the time the proceeding is commenced it was the owner and holder of the subject

mortgage and note or has been delegated the authority to institute a mortgage foreclosure action by the

owner and holder of the subject mortgage and note (See Loecher Aff., Ex. C, Complaint ¶ 1), and

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complied with all of the provisions of section five hundred ninety-five-a of the banking law and any

rules and regulations promulgated thereunder, section six-l or six-m of the banking law, and section

thirteen hundred four of this article (See Loecher Aff., Ex. C, Complaint ¶10). Therefore, the

Defendants’ second affirmative defense is meritless and must be dismissed.

IV. Plaintiff Mailed the Pre-Acceleration Notice of Default to the Defendants via First-

Class Mail

The Defendants waived any defense concerning a contractual condition precedent by failing to

raise it with the requisite specificity and particularity. Capital One, N.A. v. Saglimbeni, 170 A.D.3d 508

(1st Dept. 2019) Notwithstanding this, according to the Affidavit of Mailing, the Plaintiff complied with

such condition because it mailed the notice of default dated October 25, 2022 to the Defendants via first-

class mail to 106 Munro Blvd, Valley Stream, NY 11581, which duly afforded them an opportunity to

cure their default and substantially complied with the terms of the mortgage. IndyMac Bank, FSB v.

Kamen, 68 A.D. 3d 931 (2d Dept. 2009); Hudson City Sav. Bank v. Friedman, 146 A.D. 3d 757 (2d

Dept. 2017) The affiant’s factual averments were based on a review of the business records that were

submitted with the Affidavit as well as the standard office mailing procedure designed to ensure that

items are properly addressed and mailed, in compliance with CPLR §4518(a). PennyMac Corp. v.

Arora, 184 A.D. 3d 652, 655 (2d Dept. 2020); HSBC Bank USA, N.A. v. Bermudez, 175 A.D. 3d 667 (2d

Dept. 2019); JPMorgan Chase Bank Natl. Assn. v. Futterman, 173 A.D. 3d 1496, 1499 (3d Dept. 2019);

also see Viviane Etienne Med. Care v. Country-Wide Ins. Co., 25 N.Y. 3d 498 (2015); People v.

Kennedy, 68 N.Y. 2d 569, 579-580 (1986)

Assuming, arguendo, the Plaintiff did not send this notice to the Defendants, then the Complaint

cannot be dismissed because RPAPL §1351(2) permits a lender to recover unpaid installments that have

become due without accelerating the remaining portion of the debt under partial foreclosure. See 2

Bergman on New York Mortgage Foreclosures §17.01; Aurora Loan Services, LLC v. Tobing, 172 A.D.

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3d 975, 977-978 (2d Dept. 2019) Therefore, compliance with the conditions of acceleration contained in

paragraph 22 of the Mortgage is not a condition precedent to commencing a foreclosure action to the

extent that the Plaintiff seeks only to recover unpaid amounts that have already come due under the

terms of the Note and Mortgage, and the Complaint cannot be dismissed on the ground the Plaintiff

failed to send such notice. Deutsche Bank Natl. Trust Co. v. Crimi, 2020 N.Y. App. Div. LEXIS 3512

(2d Dept. 2020); Tobing at 977-978. Therefore, the Defendants’ third affirmative defense is meritless

and must be dismissed.

V. Plaintiff Strictly Complied with RPAPL §1303

RPAPL §1303(1)(a) provides the foreclosing party in a mortgage foreclosure action, involving

residential real property, shall provide notice to any mortgagor if the action relates to an owner-occupied

one-to-four family dwelling. US Bank N.A. v. Nelson, 169 A.D. 3d 110, 118 (2d Dept. 2019) RPAPL

§1303(2) mandates that the notice be in bold, 14-point type and printed on colored paper that is other

than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type.

Eastern Sav. Bank, FSB v. Tromba, 148 A.D. 3d 675, 676 (2d Dept. 2017); Nelson at 118. The RPAPL

§1303 must be “delivered” with the summons and complaint in the foreclosure action, and proper

service is a condition precedent to the commencement of the action which is the plaintiff’s burden to

meet. Aurora Loan Services LLC v. Weisblum, 85 A.D. 3d 95, 102 (2d Dept. 2011)

The Plaintiff satisfied this burden with the Schultz Affidavit, which established the Defendants

was served with the RPAPL §1303 “Help for Homeowners in Foreclosure” Notice in accordance with

CPLR §308(1) and CPLR §308(2) on May 17, 2023 at 10:39am at 106 Munro Boulevard, Valley

Stream, NY 11581. U.S. Bank N.A. v. Ahmed, 174 A.D. 3d 661, 664 (2d Dept. 2019) The Defendants’

bare and unsubstantiated allegation of non-compliance is insufficient to rebut the presumption of proper

service created by the Affidavit of Service because it lacked the requisite factual specificity and detail.

HSBC Bank USA, N.A. v Lopez, 178 A.D. 3d 679, 680 (2d Dept. 2019); Deutsche Bank National Trust

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Co. v. Hussain, 78 A.D. 3d 989 (2d Dept. 2010); Countrywide Home Loans Servicing v. Albert, 78 A.D.

3d 984, 985 (2d Dept. 2010); Nelson at 119. Therefore, the Defendants’ fourth affirmative defense is

meritless and must be dismissed.

VI. Plaintiff Strictly Complied with RPAPL §1304

According to RPAPL §1304, with regard to a home loan, at least ninety days before a lender,

assignee, or mortgage loan servicer commences legal action against the borrower, including mortgage

foreclosure, the lender or mortgage loan servicer shall give notice to the borrower in at least fourteen-

point type which shall include certain statutorily-mandated content. Federal Natl. Mtge. Assn. v.

Johnson, 177 A.D. 3d 1149 (3d Dept. 2019); contrast with Vanderbilt Mtge. & Fin., Inc. v Ammon, 118

N.Y.S. 3d 125, 128 (2d Dept. 2020) (if a loan is not a “home loan”, then such notice is not required)

RPAPL §1304(2) provided that such notice must be sent by registered or certified mail and by first-class

mail to the last known address of the borrower. Although not jurisdictional, proper service of the

RPAPL §1304 notice on the borrower or borrowers is a condition precedent to the commencement of a

foreclosure action and the plaintiff has the burden of establishing satisfaction of this condition. Aurora

Loan Services, LLC v. Weisblum, 85 A.D. 3d 95, 106 (2d Dept. 2011); Flagstar Bank, FSB v. Jambelli,

140 A.D.3d 829, 830 (2d Dept. 2016); U.S. Bank, N.A. v. Carey, 127 A.D. 3d 894, 896 (2d Dept. 2016)

A plaintiff can establish, prima facie, its “strict compliance” with the notice requirements of

RPAPL §1304 by submitting proof of timely, proper service of a fully compliant RPAPL §1304 notice.

Emigrant Mortgage Co., Inc. v. Persad, 117 A.D. 3d 676, 677 (2d Dept. 2014) An affidavit from an

employee of the plaintiff or its mortgage loan servicer supported by records that satisfy the business

records exception to the hearsay rule can prove that the RPAPL §1304 notice was addressed and mailed

in accordance with the statute. HSBC Bank USA, N.A. v. Ozcan, 154 A.D. 3d 822, 825-827 (2d Dept.

2017); Nationstar Mortgage, LLC v. LaPorte, 162 A.D. 3d 784, 786 (2d Dept. 2018); CitiMortgage, Inc.

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v. Wallach, 163 A.D. 3d 520, 521 (2d Dept. 2018); Investors Sav. Bank v. Salas, 152 A.D. 3d 752, 743-

754 (2d Dept. 2017)

Although an affidavit of service may be a preferable method for a plaintiff to prove that it

properly addressed and mailed the RPAPL §1304 notices, that is not the only method by which a

residential foreclosure plaintiff may establish that it properly mailed the required notice. Flagstar Bank,

FSB v. Mendoza, 139 A.D. 3d 898, 900 (2d Dept. 2016) Furthermore, there is no requirement that a

plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie

case, so long as the plaintiff satisfies the admissibility requirements of CPLR §4518(a), and the records

themselves actually evince the facts for which they are relied upon. Citigroup v. Kopelowitz, 147 A.D.

3d 1014, 1015 (2d Dept. 2017) Thus, mailing may be proved by any number of documents meeting the

requirements of the business records exception to the hearsay rule under CPLR §4518. Ozcan at 826.

Additionally, by requiring the lender or mortgage loan servicer to send the RPAPL §1304 notice by

registered or certified mail and also by first-class mail, the legislature provided the means for the

plaintiff to demonstrate its compliance with the statute by submitting the proof of mailing issued by the

United States Postal Service. CitiMortgage Inc. v. Pappas, 147 A.D. 3d 900, 901 (2d Dept. 2017);

Everbank v. Greisman, 119 N.Y.S. 3d 231, 233 (2d Dept. 2020) (proof of the requisite mailing, which

can be established with proof of the actual mailings, such as affidavits of mailing or domestic return

receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure

that items are properly addressed and mailed, sworn to by someone with personal knowledge of the

procedure); Ozcan at 830.

The Plaintiff established, prima facie, that it complied with RPAPL §1304 that, at least 90 days

before commencing the action, it served the Defendants with a proper notice under the statute by

submitting proof of timely, proper service of a fully compliant RPAPL §1304 notice. Persad at 676-678.

According to the Affidavit of Mailing, the Plaintiff mailed the RPAPL §1304 notices to the Defendants

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by first class and certified mail on October 25, 2023, more than ninety days prior to when the action was

commenced. The affiant’s factual averments were based on a review of the business records that were

submitted with the Affidavit as well as the standard office mailing procedure designed to ensure that

items are properly addressed and mailed, in compliance with CPLR §4518(a). PennyMac Corp. v.

Arora, 2020 N.Y. Misc. LEXIS 3322, at *5 (2d Dept. 2020); HSBC Bank USA, N.A. v. Bermudez, 175

A.D. 3d 667 (2d Dept. 2019); JPMorgan Chase Bank Natl. Assn. v. Futterman, 173 A.D. 3d 1496, 1499

(3d Dept. 2019); also see Viviane Etienne Med. Care v. Country-Wide Ins. Co., 25 N.Y. 3d 498 (2015);

People v. Kennedy, 68 N.Y. 2d 569, 579-580 (1986).

The RPAPL §1304 notice complied with the content and font requirements of RPAPL §1304(1)-

(2). Furthermore, the RPAPL §1304 notices contained only accurate statements that further the

underlying statutory purpose of providing information to borrowers that is or may be relevant to

avoiding foreclosure; none of the information is false or misleading. Bank of Am., N.A. v. Kessler, 39

N.Y. 3d 317, 327-328 (2023) This was sufficient to establish the Plaintiff satisfied the requirements of

RPAPL §1304. Deutsche Bank National Trust Co. v. Bowens, 121 N.Y.S. 3d 327, 329 (2d Dept. 2020);

CitiMortgage, Inc. v. Espinal, 134 A.D. 3d 876, 878-879 (2d Dept. 2015); Persad at 677. In the Answer,

the Defendants merely averred the Plaintiff violated the statute, which is insufficient to create a genuine

question of material fact regarding the Plaintiff’s satisfaction with the statutory notice requirements. As

such, the Plaintiff complied with RPAPL §1304.

It is well-settled that “[d]enial of receipt…standing alone, is insufficient…In addition to a claim

of no receipt, there must be a showing that [the] routine office practice was not followed or was so

careless that it would be unreasonable to assume that the notice was mailed.” CIT Bank N.A. v.

Schiffman, 36 N.Y. 3d 550, 557 (2021); Nassau Ins. Co. v. Murray, 46 N.Y. 2d 828, 829 (1978)

Accordingly, “there must be proof of a material deviation from an aspect of the office procedure that

would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the

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intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect cast

doubt on the reliability of a key aspect of the process such that the inference that the notice was properly

mailed is significantly undermined. Minor deviations of little consequence are insufficient.” Schiffman at

557.

In Schiffman, the Court of Appeals rejected the defendants’ argument that a single deviation

from any aspect of the routine office procedure necessarily rebuts the presumption of mailing [on the

ground] [s]uch a standard would undermine the purpose of the presumption because, in practice, it

would require entities to retain actual proof of mailing for every document that could be potentially

relevant in a future lawsuit. Schiffman at 557. As the State’s highest appellate court “recognized almost a

century ago, such an approach would be financially and logistically impractical given the reality that

commercial entities create and process significant volumes of mail and may experience frequent

employee turnover—circumstances that apply not only to banks, but many other businesses and

government agencies (Johnson v Lutz, 253 N.Y. 124, 126-127 (1930) [addressing adoption of the

business records rule]). Instead, New York courts have applied a workable rule that balances the

practical considerations underpinning the presumption against the need to ensure the reliability of a

routine office practice with respect to the creation and mailing of notices, which we have further

clarified today in the context of notices mailed pursuant to [RPAPL] §1304.” Schiffman at 557-558.

Therefore, the Defendants’ fourth affirmative defense is meritless and must be dismissed.

VII. Plaintiff Strictly Complied with RPAPL §1306

According to RPAPL §1306(1), each lender, assignee or mortgage loan servicer shall file with

the superintendent of financial services within three business days of the mailing of the notice required

by subdivision one of section thirteen hundred four of this article the information required by

subdivision two of this section. TD Bank, N.A. v. Leroy, 121 A.D. 3d 1256, 1259-1260 (3rd Dept. 2014);

Wells Fargo Bank, N.A. v. Walker, 141 A.D. 3d 986, 989 (3rd Dept. 2016) RPAPL §1306(2) requires

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each filing delivered to the superintendent shall be on such form as the superintendent shall prescribe,

and shall include at a minimum, the name, address, last known telephone number of the borrower, and

the amount claimed as due and owing on the mortgage, and such other information as will enable the

superintendent to ascertain the type of loan at issue. According to the Wysong Mailing Affidavit, the

Plaintiff, within three business days of mailing the RPAPL §1304 notice to the Defendants,

electronically filed notice with the Superintendent of Financial Services on October 26, 2022, as

required by RPAPL §1306(2) and confirmation number NYS5776012 was issued. The Plaintiff also

submitted a copy of the New York State Department of Financial Services Proof of Filing Statement.

(Wysong Mailing Aff., Ex. 3). As such, the Plaintiff complied with RPAPL §1306. Therefore, the

Defendants’ fourth affirmative defense is meritless and must be dismissed.

VIII. Plaintiff Strictly Complied with RPAPL §1320
Defendants also allege as a fourth Affirmative Defense, that Plaintiff failed to comply with

RPAPL 1320, which requires Plaintiff to provide Defendants with a specialized summons for private

residence foreclosure actions. This defense is devoid of any merit. Plaintiff satisfied this burden with

the Affidavit of Service executed by Richard Schultz which established proper service on the

Defendants of the RPAPL 1320 Specialized Summons with the statutorily-required content, printed in

the required type size. (Loecher Aff., Ex. D). Additionally, a copy of the statutorily compliant

Summons is attached to this motion. (Loecher Aff., Ex. C). “[A defendant’s] bare and unsubstantiated

denial of receipt [is] insufficient to rebut the presumption of proper service created by the affidavits of

service” (id. at 103, citing Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 [2d Dept. 2010]). As

such and as attested to by the process server, Defendants were served with a compliant copy of the

Specialized Summons pursuant to RPAPL 1320 at the time of service. Defendants’ bare and

unsubstantiated denial of receipt is insufficient to defeat Plaintiff’s affidavit of service indicating proper

service of the §1320 Specialized Summons. As such, this defense fails as a matter of law.

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Conclusion

For the foregoing reasons, Plaintiff respectfully requests that the Court: (1) grant Summary

Judgment, dismiss the affirmative defenses and treat the answer as a limited notice of appearance; (2)

grant an Order of Reference appointing a Referee to determine the amount due and ascertain whether the

premises can be sold in parcels; (3) amend the caption to reflect the deletion of “John Doe” as a party

Defendant to this action; (4) deem all non-appearing and non-answering Defendants in default and the

defaults be fixed and determined; and grant such other and further relief as the Court deems necessary

and proper.

DATED: _December 19, 2023____
Williamsville, New York

_/s/Melissa M. Loecher______
Melissa M Loecher, Esq.

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22 NYCRR § 202.8-b(c) CERTIFICATION

In accordance with Section 202.8-b (c) of the Uniform Civil Rules for the Supreme Court and the

County Court, the undersigned certifies that the word count in this Memorandum Of Law (excluding the

caption, table of contents, table of authorities, and signature block), is __4,790__ and complies with the

limit set forth in Section 202.8-b(a). This certification is made via reliance on the word count feature of

the word-processing system used to prepare it.

__/s/Melissa M. Loecher____
Melissa M Loecher, Esq.

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Case Info

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Nassau Fp2 Track Judge’s New Case

Case No.

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Document Filed Date

December 21, 2023

Case Filing Date

April 26, 2023

County

Parties

BABBAR AND ASSOCIATES P.C. Defendant
CACH, LLC Defendant
Fox, Christine L. Attorney for the Plaintiff
GAZZO, NICOLE CAROL Attorney for the Plaintiff
GOLDBERG, BRIAN DAVID Attorney for the Plaintiff
HOUSEHOLD FINANCE REALTY CORPORATION OF NEW YORK Defendant
Jamise Valentine Defendant
John Doe Defendant
Kevin Valentine Defendant
LOECHER, MELISSA MARY Attorney for the Plaintiff
PASCUZZI, ASHLEY MARIE Attorney for the Plaintiff
PNC BANK, NATIONAL ASSOCIATION Plaintiff
POLOWY, AMY E. Attorney for the Plaintiff
SINGER, DAVID LAWRENCE Attorney for the Defendant

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Motion-Secondary: Pnc Bank, National Association v. Kevin Valentine, Jamise Valentine, Cach, Llc, Babbar And Associates P.C., Household Finance Realty Corporation Of New York, John Doe

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