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Procedural irregularityJune 11, 2019

Wells Fargo Bank, N.A. v Merino, 2019 NY Slip Op 04655 (1st Dept. 2019)

“While defendant, who was initially pro se, raised the defense of plaintiff’s noncompliance with the strict requirements of RPAPL 1304 90-day pre-foreclosure notices in her answer, she did not raise it in her opposition to plaintiff’s motion for summary judgment, which was subsequently granted. This does not preclude her, however, from raising plaintiff’s noncompliance prior to entry of judgment of foreclosure and sale (Emigrant, 142 AD3d at 755-756).

Plaintiff failed to establish strict compliance with RPAPL 1304, a condition precedent to the commencement of a foreclosure action (see HSBC Bank USA v Rice, 155 AD3d 443 [1st Dept 2017]). The affidavits submitted by plaintiff failed to demonstrate a familiarity with plaintiff’s mailing practices and procedures (HSBC Bank, 155 AD3d at 444), and they did not suffice as affidavits of service.”

This one is interesting. In one instance, Plaintiff received summary judgment. And after obtaining summary judgment, the defendant move to dismiss based upon violation of RPAPL 1304. Head scratching

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