On August 31, 2022, the Second Department issued a decision in Wells Fargo Bank, N.A. v. Murray, 2022 NY Slip Op. 05110, denying a lender summary judgment of foreclosure because of its failure to document compliance with the RPAPL, explaining:
Here, the affidavits that the plaintiff appended to its moving papers failed to establish that the RPAPL 1304 notices were mailed by first-class mail in accordance with RPAPL 1304. While the plaintiff submitted an additional affidavit in reply, with proof of first-class mailing attached, this evidence should not have been considered in the determination of whether the plaintiff met its prima facie burden, as the issue which the new evidence was intended to address was not an issue raised for the first time in the defendants’ opposition, and the defendants were not afforded an opportunity to submit a surreply in response to the plaintiff’s newly submitted evidence in reply. As the plaintiff failed to meet its prima facie burden to establish its strict compliance with RPAPL 1304, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answers, and for an order of reference should have been denied.
Moreover, contrary to the plaintiff’s contention, the plaintiff failed to demonstrate, prima facie, its standing in this action through its status as holder of the note at the time the action was commenced. Where, as here, a borrower executes a CEMA providing that the prior notes underlying the mortgage have been consolidated into a new single lien, the plaintiff may establish its standing to commence a mortgage foreclosure action by producing the CEMA and consolidated note, properly endorsed. Here, the plaintiff attached to the complaint copies of the 2003 note and 2004 note, which together constituted the consolidated note, and each note was accompanied by an undated purported allonge endorsed to the plaintiff. However, the plaintiff failed to demonstrate that the purported allonges, each of which was on a piece of paper completely separate from the corresponding note, was so firmly affixed to the corresponding note as to become a part thereof, as required by UCC 3-202(2). The affidavit of the plaintiff’s loan servicer’s employee and the copies of the notes attached thereto which were submitted in support of the plaintiff’s motion for summary judgment did not clarify whether the allonges was firmly affixed to the notes.
(Internal citations omitted).