Adam Leitman Bailey, P.C. was retained by a lender to clean up a messy foreclosure action in which summary judgment had already been denied on the grounds that the lender failed to establish that 90 Day Notices were sent to the borrower in compliance with RPAPL § 1304, a statute that consistently proves to be the Achilles heel of lenders.
Compliance with RPAPL § 1304 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.” JPMorgan Chase Bank, Nat’l Ass’n v. Skluth, 177 A.D.3d 592, 594 (2d Dept. 2019). In this particular case, prior counsel was unable to obtain an affidavit from the lender’s servicer, proving that the notices were, in fact, sent. As a result, prior counsel was forced to submit only copies of the notices as proof. The Court found this to be insufficient.
After being retained, Adam Leitman Bailey, P.C. set out to remedy this. Using its contacts in the lending world, Adam Leitman Bailey, P.C. was able to obtain a proper affidavit of mailing, based on personal knowledge of the servicer’s standard office mailing procedure, proving that the notices were properly sent.
But, this was only the first step. Usually, a lender only gets one chance at summary judgment, i.e. a ruling from the Court that the lender has established its foreclosure claim and that the borrower fails to establish even a factual question as to any defenses thereto. However, Adam Leitman Bailey, P.C. has become an expert in moving to renew otherwise denied summary judgment motions on behalf of lenders. We cite to case law that holds that submission of a corrective affidavit by a person with knowledge is appropriate grounds for a renewed motion for summary judgment, and we give a detailed explanation as to why such affidavit could not have been produced on the original motion. This is exactly what Adam Leitman Bailey, P.C. did here: we provided the Court with affirmations from all of the lender’s prior counsel, detailing what steps were taken to obtain the affidavit from the lender’s servicer and the lack of response from the servicer.
Ultimately, the Court agreed that the lender made the requisite showing in order to renew its summary judgment motion, and upon renewal, found that the affidavits of mailing obtained by Adam Leitman Bailey, P.C. more than sufficiently demonstrate that the required 90 Day Notices were, in fact, sent. And therefore, Adam Leitman Bailey, P.C. secured summary judgment in favor of its client, thus permitting the client to avoid the expense and hassle of a trial.
Jackie Halpern Weinstein, Esq., Courtney J. Lerias, Esq., and Danny Ramrattan, Esq. of the Foreclosure Litigation Group at Adam Leitman Bailey, P.C. secured this successful result for the client.
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