As we explained in our case summary, the questions in this case certified from the Second Circuit were: (i) whether a bank established that it properly mailed notice of an impending foreclosure action to a borrower by submitting an affidavit suggesting that its mailing deviated from its usual practice; and (ii) whether the bank satisfied its obligation to file information with the Department of Financial Services (DFS) when the bank’s filing listed only one of the two borrowers. In a unanimous decision, the Court (DiFiore, CJ) explained how the bank sufficiently could establish its delivery of the statutorily-required notice to the borrowers, and held that the bank’s notice to DFS was adequate.
The Real Property Actions and Proceedings Law (RPAPL) established certain obligations for a lender seeking to foreclose on a mortgage. Among other things, the lender was required to send a notice to the borrower at least 90 days before commencing the foreclosure action (RPAPL 1304) and was required to then file a form with DFS within three days of sending the notice (RPAPL 1306). Here, the bank sought to prove that it sent the notice through an affidavit attesting that such notices were generated upon a borrower’s default, even though the notice in this case had been sent about a year after the borrowers’ default. And the bank duly filed its form with DFS, although the form listed only one of the two borrowers on the loan.
On certification, the Court held first that an affidavit of the bank’s regular office practice of mailing notices would be sufficient to create a presumption that the mailing was sent according to that regular procedure. To rebut that presumption, the Court continued, a party must submit 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 intended recipient.” The Court declined to say whether the particular deviation in this case was sufficient to rebut the presumption of mailing. But the Court did reject the borrowers’ claim that “a single deviation from any aspect of the routine office procedure necessarily rebuts the presumption of mailing.”
The Court next held that the bank’s filing with DFS was sufficient, even though it identified only one of the two borrowers. Requiring at least one borrower was consistent with the text of the RPAPL provision, which provided that the filing with DFS must include “at a minimum, the name, address, last known telephone number of the borrower.” And requiring information about only one borrower was consistent with the purpose of the RPAPL provision, which was intended to ensure that lenders gave DFS information so that it could monitor foreclosure filings in the state.
Judge Fahey joined the Court’s decision and wrote a separate concurring opinion to emphasize that not every regular office practice would be sufficient to create a presumption of mailing.