Plaintiff moved for Summary Judgment in its favor, including a default judgment against the defaulting parties, and appointment of a referee to compute in this foreclosure action. The Defendants cross-moved for summary judgment dismissing the complaint. Plaintiff alleged the Wilsons defaulted on their monthly mortgage payments.
Plaintiff's counsel submitted affidavits of two assistant vice president of Bank of America, Hassett and Kusich, stating that a 90 day notice was served via certified mail and first class mail to the borrowers' last know address.
The Wilson's affidavits proclaimed that they were never served a 90 day notice, as required under RPAPL §1304 .
A traverse hearing was held and the court held plaintiff established jurisdiction over defendants. The court noted proper service of §1304 notice was a condition precedent to commencement of a foreclosure suit. It found both Hasset's and Kusich's affidavits failed to set forth the standard office practice by plaintiff that it properly addressed and mailed notice in compliance with §1304, or that either were working at the bank at the time of the mailings.
Plaintiff failed to establish it properly defendants under §1304, and defendants' motion to dismiss was granted.
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