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WELLS FARGO VS KAHYA, WELLS FARGO | NYSC – SUES ITSELF…PLAINTIFF FAILED TO SUBMIT AN AFFIDAVIT OF SERVICE EVINCING THAT IT PROPERLY SERVED THE BORROWER PURSUANT TO RP APL 1304

WELLS FARGO VS KAHYA, WELLS FARGO | NYSC – SUES ITSELF…PLAINTIFF FAILED TO SUBMIT AN AFFIDAVIT OF SERVICE EVINCING THAT IT PROPERLY SERVED THE BORROWER PURSUANT TO RP APL 1304

Further, when the statute was first enacted, and when this action was commenced, it applied only to ”high cost, subprime, and non-traditional home loans (Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d at 104, [citing L. 2008, ch. 472, § 2] ). The moving papers fail to address whether the subject loan was a high cost, subprime, or non-traditional home loan when made. [P]roper service of 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 or that service of the notice was not required under the version of the statute that was in effect at the time the action was commenced (Aurora Loan Servs., LLC, 85 A.D.3d at 106, 923 N.Y.S.2d 609). Here, the plaintiff failed to submit an affidavit of service evincing that it properly served the borrower pursuant to RP APL 1304, or in the alternative, demonstrate that the subject loan was not a high cost, subprime, or non-traditional home loan to which the former version of RP APL § 1304 applied (see id.). Thus, the plaintiff failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law in connection with the fourth affirmative defense (see Aurora Loan Servs., LLC, 85 A.D.3d at 106, 923 N. Y.S.2d 609; see also Deutsche Bank Nat. Trust Co. v. Spanos, 102 A.D.3d 909, 911, 961N.Y.S.2d200 [2d Dept. 2013]). Since on the motion for summary judgment the plaintiff did not argue that the defendant did not reside at the subject premises when the action was commenced, and the pre-foreclosure notice requirement of RP APL § 1304 only applies to statutorily defined home loans”, and further, since the defendant did not have an opportunity to address that issue in opposing the motion, the Court likewise declines to address it here. Accordingly, that branch of the plaintiffs motion which is for summary judgment dismissing the fourth affirmative defense alleging that the plaintiff failed to comply with RP APL 1304 is denied, without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). The denial is without prejudice to renew upon proper papers as indicated herein within one-hundred twenty days of the date of this order. Any renewal shall include a copy of this Order and the supporting papers on this application. The remaining affirmative defenses numbered First through Third and Fifth through Nineteenth are stricken. These affirmative defenses are not supported by any proof in admissible form sufficient to raise a triable issue of fact. The opposition consisted solely of the affirmation of the appointed Guardian Ad Litem and Military Attorney who has no personal knowledge of the facts (see Zuckerman v City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980] [party opposing summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue of material fact for trial]). Defenses which merely plead conclusions of law without supporting facts are insufficient and should be stricken (see CPLR § 3018(b); see also Petracca v. Petracca, 305 A.D.2d 566, 567, 760 N.Y.S.2d 513 [2d Dept. 2003]; Bruno v. Sant’Elia, 52 A.D.3d 556, 557, 860 N.Y.S.2d 589 [2d Dept. 2008]; Cohen Fashion Optical, Inc. v. V & M Optical, Inc., 51A.D.3d619, 858 N.Y.S.2d 260 [2d Dept. 2008].

 

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