Federal National Mortgage Association v. Quadrozzi, Supreme Court, Kings County, Index No. 25485/2009
Many times it is the simple things that trip up mortgage foreclosure plaintiffs. This case is an example. In this mortgage foreclosure action, the court denied the lender’s motion to renew after first denying the lender’s motion for summary judgment in foreclosure. The lender alleged that once the loan went into default, it notified the borrower of the need to cure its default and that it would accelerate the loan if the default was not cured within thirty days. The lender claimed it sent its notice by first class mail. The trouble was the lender did not have competent proof of the mailing; that is, it was missing a contemporaneous affidavit of service. Based upon these facts, the court denied the lender’s motion for summary judgment.
After the court denied the lender’s summary judgment motion, the lender moved to renew. On its motion to renew, the lender alleged that the default and acceleration notice mailing was handled by an outside vendor, Arkansas Mailing Services Corp. The owner of Arkansas Mailing Services Corp. submitted what appeared to be a competent affidavit demonstrating that the default and acceleration notice was properly mailed.
Nevertheless, the Court denied the motion to renew. The court held that the lender failed to present a reasonable justification for not including the information from Arkansas Mailing Services Corp. as part of its original motion for summary judgment in foreclosure.
The lesson of Federal National Mortgage Association v. Quadrozzi then is that lender’s must take care to properly assemble their proofs when moving for summary judgment in foreclosure. Courts may not provide them with a second chance.