Monday, August 15, 2016

Notice Provisions of RPAPL §1304 Inapplicable Where Borrower Deceased

US Bank moved for summary judgment and an order of reference in this mortgage foreclosure action. The now-deceased borrower, Eisenman, failed to make payments, but defendant opposed the motion arguing dismissal was warranted due to bank's failure to serve the estate of Eisenman with notice of default under RPAPL §1304. The court found bank established prima facie entitlement to summary judgment and an order of reference noting defendant failed to raise an issue of fact precluding summary judgment in bank's favor. It found defendant's laches argument meritless, as was the claim bank failed to comply with the notice provisions of §1304. Also, contrary to defendant's claim, the Jan. 30, 2012 dismissal of a prior action against Eisenman was not dismissed on the merits, and was not res judicata barring this action. The court stated prior courts found §1304 was inapplicable where the borrower was deceased. Therefore, as Eisenman, the borrower, was deceased, there could no longer be notice given to the borrower, and accordingly, the notice provisions of RPAPL §1304 did not apply. Hence, bank's motion for summary judgment, and an order of reference was granted.

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