Typographical Address Errors and Prior Lost‑Note Affidavits in New York Mortgage Foreclosures: Commentary on Wells Fargo Bank, N.A. v. Ciurleo

Typographical Address Errors and Prior Lost‑Note Affidavits in New York Mortgage Foreclosures: Commentary on Wells Fargo Bank, N.A. v. Ciurleo

I. Introduction

The Appellate Division, Second Department’s decision in Wells Fargo Bank, N.A. v. Ciurleo, 2025 NY Slip Op 07039 (Dec. 17, 2025), sits at the intersection of two recurring issues in New York residential mortgage foreclosure litigation:

  1. What amounts to “strict compliance” with the 90‑day pre‑foreclosure notice required by RPAPL 1304 when there is a discrepancy between the address on the loan documents and the address on the statutory notice?
  2. How do earlier “lost note” affidavits and inconsistent copies of a note affect the lender’s standing when it now produces an endorsed note attached to the foreclosure complaint?

The Second Department’s opinion clarifies that:

  • A typographical error in the address printed in the loan documents will not by itself defeat RPAPL 1304 compliance where the lender shows the correct property address was used for the 90‑day notices and the borrower confirms that address.
  • At the same time, a lender that otherwise establishes a prima facie showing of standing by attaching an endorsed note to the complaint can still be denied summary judgment where the borrower produces earlier sworn “lost note” statements and unendorsed copies of the note that create a triable issue of fact about when and whether the lender actually possessed the original note.

This commentary examines the factual background, the court’s holdings, the precedents relied upon, the legal reasoning, and the broader implications for foreclosure litigation in New York.

II. Factual and Procedural Background

The case arises from a residential mortgage loan made in July 2003:

  • Borrower: Defendant Joseph Ciurleo.
  • Lender/Original payee: Defendant FFFC.
  • Note amount: $569,600, secured by a mortgage on residential property in Queens.

Key events:

  • March 2011 – Ciurleo executes a loan modification agreement, reaffirming the mortgage debt, changing principal and payment terms.
  • March 2018 – A second loan modification agreement is executed.
  • May 1, 2018 – Alleged default: Ciurleo allegedly fails to make the May 1, 2018 payment and subsequent payments.
  • March 2019 – Wells Fargo Bank, N.A. (“Wells Fargo”), as successor to FFFC, commences a mortgage foreclosure action.

In his amended answer, Ciurleo raises, among other defenses:

  1. Lack of standing (Wells Fargo allegedly not the holder or assignee of the note at commencement).
  2. Failure to comply with RPAPL 1304 (the 90‑day pre‑foreclosure notice requirement).

Wells Fargo moves for:

  • Summary judgment on the complaint as against Ciurleo,
  • Striking his answer and affirmative defenses, and
  • An order of reference (to compute the amount due).

The Supreme Court, Queens County, denies those branches of the motion. It appears the trial court treated the RPAPL 1304 address discrepancy as fatal to the bank’s claim of compliance. Wells Fargo appeals.

III. Summary of the Appellate Division’s Decision

The Second Department:

  1. Modifies the lower court’s order to grant that branch of Wells Fargo’s motion striking Ciurleo’s RPAPL 1304 affirmative defense. The court holds that Wells Fargo established strict compliance with RPAPL 1304 despite a slight discrepancy between the property address in the note and the one on the 90‑day notices, which was explained as a typographical error and confirmed by the borrower as the correct address.
  2. Affirms the Supreme Court’s denial of:
    • Summary judgment on the complaint against Ciurleo,
    • Striking his remaining affirmative defenses and answer, and
    • Issuance of an order of reference.
    The court finds that Ciurleo raised triable issues of fact as to standing by submitting:
    • A 2005 lost note affidavit in an earlier foreclosure case, and
    • A copy of the note filed in a 2007 foreclosure action that lacked the endorsement now appearing on the copy attached to the present complaint.
  3. Holds that, while attaching an endorsed note to the complaint normally suffices to show standing, the unexplained conflict between the current evidence and earlier sworn statements and filings requires a trial on the standing issue.

Result: Wells Fargo’s compliance with RPAPL 1304 is established as a matter of law and that defense is eliminated, but the foreclosure action proceeds with standing as a disputed, fact‑intensive issue to be resolved at trial or further motion practice.

IV. Analysis

A. RPAPL 1304 and Address Discrepancies: Strict Compliance Clarified

1. The Statutory Framework

RPAPL 1304(1) requires that, for a “home loan,” at least 90 days before commencing a foreclosure action, the lender, assignee, or servicer must:

  • Give a prescribed pre‑foreclosure notice to the borrower,
  • Containing mandated language and information (e.g., amount due, counseling resources), and
  • Send it by both:
    • Registered or certified mail, and
    • First‑class mail,
    to:
    • The borrower’s last known address, and
    • The residence that is the subject of the mortgage.

The statute has been consistently interpreted as imposing a condition precedent to foreclosure: “The plaintiff must demonstrate strict compliance with RPAPL 1304” before it may obtain foreclosure relief. (U.S. Bank N.A. v Jeffrey, 222 AD3d 802, 804.)

2. Evidence of Mailing and the Second Department’s Line of Cases

The court reiterates that a lender can prove RPAPL 1304 compliance on summary judgment by providing documentary and affidavit evidence establishing both the content of the notices and their proper mailing. The court cites:

  • Lakeview Loan Servicing, LLC v Swanson, 231 AD3d 801, 803 – when a plaintiff alleges in its complaint that it served RPAPL 1304 notices, it must prove that allegation on summary judgment by sufficient evidence of strict compliance.
  • U.S. Bank Trust, N.A. v Longo, 227 AD3d 1122, 1123 – reiterating the 90‑day requirement and its application to “home loans.”
  • Bank of N.Y. Mellon v Dilavore, 233 AD3d 930, 931 – describing the required contents of the RPAPL 1304 notice and applying strict compliance.
  • U.S. Bank N.A. v Nahum, 232 AD3d 715, 716 – confirming that the statute mandates mailing by both certified/registered and first‑class mail to the last known address and the mortgaged premises.
  • Wells Fargo Bank, N.A. v Fregosi, 222 AD3d 811, 812 – stating how strict compliance can be shown: via domestic return receipts, proof of standard office mailing procedures, or an affidavit with personal knowledge of actual mailing.

In Ciurleo, Wells Fargo followed this blueprint:

  • It submitted an affidavit from an employee of its loan servicer who:
    • Averred familiarity with the servicer’s mailing practices and procedures, and
    • Described a standard office mailing procedure designed to ensure items are properly addressed and mailed.
  • It annexed:
    • Copies of the 90‑day notices, each bearing USPS tracking numbers,
    • A copy of the servicer’s letter log, and
    • USPS records relating to the certified mailing.

These submissions track closely the evidentiary models approved in:

  • Homebridge Fin. Servs., Inc. v Mauras, 201 AD3d 890, 891–892 – where an affidavit of a loan servicer employee describing standard mailing procedures, together with USPS documentation and letter logs, sufficed.
  • Bank of Am., N.A. v Bloom, 202 AD3d 736, 738 – similar approval of servicer affidavit plus supporting documentation.
  • HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 827 – key early case approving evidence of standard office practices as proof of mailing.

Thus, on the mailing issue alone, Wells Fargo made a strong prima facie showing consistent with this line of authority.

3. The Address Discrepancy and “Typographical Error” Concept

The Supreme Court, however, did not reject Wells Fargo’s proof on mailing. Rather, it found a defect because:

  • The address printed on the RPAPL 1304 notices differed slightly from the address for the subject property as listed in the note.

The Appellate Division reverses this aspect of the lower court’s reasoning. It holds:

  • Wells Fargo submitted evidence showing that the address in the note contained a typographical error.
  • The address used on the 90‑day notices was in fact the correct address of the mortgaged premises.

The court supports this result by analogizing to cases where obvious clerical errors in loan documentation were deemed correctable by extrinsic evidence:

  • Bank of Am., N.A. v Pennicooke, 186 AD3d 545, 546 – allowed a party to show a typographical mistake and enforce the intended terms.
  • Deutsche Bank Natl. Trust Co. v Romano, 147 AD3d 1021, 1023 – addressed the effect of typographical errors in recorded instruments and permitted correction by reference to other, consistent evidence.

Crucially, the borrower himself, in his opposing affidavit, confirmed that the address on the 90‑day notices was correct. That admission undercuts any argument that he failed to receive notice of the impending foreclosure due to the discrepancy.

4. The Holding on RPAPL 1304 and Its Significance

The court concludes that:

  • Wells Fargo established prima facie compliance with RPAPL 1304’s notice and mailing requirements.
  • Ciurleo failed to raise any triable issue of fact regarding RPAPL 1304 compliance.
  • The RPAPL 1304 affirmative defense must therefore be stricken.

Doctrinally, this decision reinforces several points:

  1. Strict compliance is substantive, not hyper‑technical.
    The requirement is “strict” but not divorced from reality. A minor typographical error in the loan documents, corrected and validated by independent evidence and the borrower’s own admission, will not invalidate an otherwise proper notice sent to the correct address.
  2. Proper address is measured by reality, not by a mistaken line in an instrument.
    RPAPL 1304 requires that notices be sent to the residence securing the loan and the borrower’s last known address. If the note’s address line is wrong but the property’s actual, correct address was used for the 90‑day notice, and all evidence (including the borrower’s admission) shows that is indeed the mortgaged premises, the statute’s purpose has been met.
  3. Borrower admissions matter.
    When a borrower confirms the address on the RPAPL 1304 notices, it becomes very difficult to maintain a technical noncompliance argument based solely on a misprint elsewhere.

Practically, Ciurleo prevents borrowers from weaponizing harmless clerical errors in underlying documents when the evidence shows they actually received proper statutory notice at the correct address. At the same time, lenders are reminded that they must be prepared to document and explain any such discrepancies.

B. Standing, Note Possession, and the Impact of Prior Lost‑Note Affidavits

1. Standing in Foreclosure Actions

“Standing” in New York foreclosure practice refers to the plaintiff’s status as the proper party to enforce the debt— specifically, whether it was the holder or assignee of the note when the action was commenced. The court reiterates settled principles:

  • When a defendant places standing in issue, the plaintiff must prove standing as part of its prima facie case on summary judgment. (HSBC Bank USA, N.A. v Sene, 219 AD3d 1499, 1500; HSBC Bank USA, N.A. v Boursiquot, 204 AD3d 980, 981.)
  • A plaintiff establishes standing by demonstrating that, at commencement, it was:
    • the holder of the note, or
    • the assignee of the note.
    (Deutsche Bank Trust Co. Ams. v McDonald, 216 AD3d 735, 737.)
  • Either:
    • a written assignment of the note, or
    • physical delivery of the note before commencement,
    suffices to transfer the obligation; the mortgage follows the debt as an “inseparable incident.” (U.S. Bank N.A. v Rozo‑Castellanos, 201 AD3d 995, 998.)

Where a plaintiff relies on physical possession:

  • It may establish a prima facie case simply by:
    • Annexing the note, properly endorsed, to the complaint, or
    • Submitting an affidavit from a representative attesting to pre‑commencement possession.
    (Deutsche Bank Trust Co. Ams. v McDonald, 216 AD3d at 737.)
  • If the note is attached to the complaint, the plaintiff usually need not provide detailed factual proof of the date of delivery. (Bank of N.Y. Mellon v Swift, 213 AD3d 624, 626.)

2. Wells Fargo’s Prima Facie Showing of Standing

In Ciurleo, Wells Fargo relied on physical possession:

  • It attached a copy of the note to the summons and complaint when the action was commenced.
  • That copy included an endorsement to Wells Fargo executed by FFFC.

Under settled Second Department precedent, that alone is ordinarily enough to make a prima facie showing of standing based on physical possession:

  • Amalgamated Bank v Freue, 178 AD3d 890, 890–891 – attachment of note with proper endorsement to complaint sufficed.
  • JPMorgan Chase Bank, N.A. v Rosa, 169 AD3d 887, 889 – attaching note endorsed in blank sufficed to show standing absent contrary proof.

The Appellate Division accepts that Wells Fargo met this initial burden. Thus, the burden shifted to Ciurleo to raise a triable issue of fact.

3. The Borrower’s Rebuttal: Lost‑Note Affidavit and Earlier Unendorsed Note

Ciurleo, however, produced two pieces of evidence in opposition that significantly complicated the standing analysis:

  1. The 2005 lost note affidavit in a prior foreclosure action.
    In that earlier proceeding:
    • An authorized agent of Wells Fargo executed an affidavit in 2005 asserting that the original note could not be located despite a “thorough and diligent search.”
    • This affidavit was filed in connection with a 2005 foreclosure action on the same mortgage.
    This sworn statement is difficult to reconcile with Wells Fargo’s current claim—through its servicer’s representative—that the bank “has been in continuous physical possession” of the note since September 3, 2003. The inconsistency suggests that either:
    • The earlier lost‑note affidavit was inaccurate, or
    • There has been some break or uncertainty in the chain of possession now being glossed over.
  2. The 2007 action copy of the note, lacking Wells Fargo’s endorsement.
    Ciurleo also submitted a copy of the note allegedly filed in a 2007 foreclosure action (“the 2007 action”). That copy:
    • Did not include the endorsement from FFFC to Wells Fargo that appears on the copy annexed to the complaint in the present action,
    • Even though Wells Fargo claims it obtained the note from FFFC in 2003, years before the 2007 filing.
    The absence of endorsement in 2007, if the endorsement is genuine and was allegedly executed when the note was delivered in 2003, raises questions about:
    • When the endorsement was actually added to the note, and
    • Whether the endorsed copy now attached reflects the note’s status at the time this action was commenced.

These discrepancies track concerns seen in earlier Second Department decisions:

  • CitiMortgage, Inc. v Barbery, 186 AD3d 448, 449–450 – where inconsistencies between a lost‑note affidavit and later claims of possession raised factual issues as to note ownership and standing.
  • U.S. Bank N.A. v Haughton, 189 AD3d 1305, 1306 – where unclarified conflicts in the record created triable issues of fact regarding standing despite nominal prima facie proof.
  • JPMorgan Chase Bank, N.A. v Rodriguez, 201 AD3d 903, 905–906 – addressing contradictions in assignment/possession history that precluded summary judgment.

4. The Court’s Resolution: Triable Issues of Fact on Standing

The Second Department acknowledges that Wells Fargo’s attachment of the endorsed note would ordinarily suffice for standing, but holds that the borrower’s counter‑evidence changes the posture:

  • The 2005 lost note affidavit conflicts with the recent assertion of “continuous physical possession” since 2003.
  • The 2007 unendorsed note conflicts with the notion that Wells Fargo had a properly endorsed note long before that date.

The court explicitly notes that Wells Fargo might have had adequate explanations for these conflicts—for example:

  • The note may have been lost, later found, and endorsed; or
  • The earlier lost‑note affidavit might reflect a mistaken or incomplete search by a prior servicer; or
  • The 2007 filing might have mistakenly attached an unendorsed copy despite existence of an endorsed original.

However, the critical point is procedural: Wells Fargo offered no such explanation in its summary judgment papers. As a result:

  • The borrower’s submissions were sufficient to create triable issues of fact about:
    • Whether Wells Fargo possessed the original note at the time this action was commenced; and
    • The circumstances of the endorsement appearing on the copy attached to the current complaint.

Accordingly, the court holds that summary judgment on the complaint, and the branches of the motion seeking to strike Ciurleo’s entire answer and remaining affirmative defenses and for an order of reference, were properly denied.

5. Doctrinal Takeaways on Standing

Several important principles emerge:

  1. Attachment of the endorsed note is sufficient, but not invulnerable.
    A plaintiff can meet its prima facie burden through the standard method (endorsed note attached to complaint), but this does not preclude a defendant from defeating summary judgment by credible, conflicting evidence.
  2. Earlier litigation and sworn statements matter.
    Lost‑note affidavits and copies of the note from prior foreclosure actions can be powerful tools for borrowers. They may reveal inconsistencies that cast doubt on the bank’s claimed possession timeline.
  3. Unexplained discrepancies defeat summary judgment.
    Where there are obvious tensions between:
    • Earlier sworn statements (e.g., a lost‑note affidavit declaring the original cannot be located), and
    • Later claims (e.g., continuous possession since before the earlier affidavit),
    the plaintiff must affirmatively reconcile those conflicts. Silence or vague assertions will not suffice.
  4. Standing is fact‑sensitive and remains a live defense.
    Even with favorable presumptions from attached endorsements, the Second Department signals that standing remains a robust, fact‑dependent inquiry where defendants produce serious, contradictory evidence.

C. Precedents Cited and Their Influence

The opinion stands atop a dense network of Second Department foreclosure decisions. They can be grouped as follows.

1. Proof of Prima Facie Case in Foreclosure

  • Zarabi v Movahedian, 136 AD3d 895, 895 – establishes that a plaintiff seeking summary judgment in a foreclosure action must produce the mortgage, the unpaid note, and evidence of default.
  • Citimortgage, Inc. v Doomes, 202 AD3d 752, 753 – reiterates that standard and applies it to contemporary foreclosure practice.

These cases frame what Wells Fargo needed to provide at the outset: the note, mortgage, and proof of default. The court does not dispute that Wells Fargo met this basic foreclosure burden; the contentious issues are RPAPL 1304 and standing.

2. RPAPL 1304 Compliance and Proof of Mailing

  • Lakeview Loan Servicing, LLC v Swanson, 231 AD3d 801 – complaint allegations of RPAPL 1304 service must be proved on summary judgment.
  • U.S. Bank N.A. v Jeffrey, 222 AD3d 802 – strict compliance with RPAPL 1304 is a condition precedent to foreclosure.
  • U.S. Bank Trust, N.A. v Longo, 227 AD3d 1122 – restates the 90‑day notice requirement.
  • Bank of N.Y. Mellon v Dilavore, 233 AD3d 930 – elaborates on required content and addresses RPAPL 1304 proof issues.
  • U.S. Bank N.A. v Nahum, 232 AD3d 715 – clarifies dual mailing obligations (certified/registered and first‑class).
  • Wells Fargo Bank, N.A. v Fregosi, 222 AD3d 811 – outlines how to establish strict compliance through office mailing procedures and documentation.
  • Homebridge Fin. Servs., Inc. v Mauras, 201 AD3d 890 – approves the loan servicer affidavit plus USPS tracking and logs approach.
  • Bank of Am., N.A. v Bloom, 202 AD3d 736 – similar to Mauras in accepting procedural‑proof‑of‑mailing.
  • HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822 – early case establishing that detailed proof of standard office procedures is enough to infer proper mailing.

Ciurleo follows these authorities and extends them slightly by addressing how an address typographical error in the underlying loan documents interacts with “strict compliance.” The court treats the statutory requirement as satisfied if the correct property address is affirmatively used and documented for the notices themselves, despite a mistaken reference in prior instruments.

3. Address Errors and Correctable Mistakes

  • Bank of Am., N.A. v Pennicooke, 186 AD3d 545 – allows courts to look past typographical errors in loan papers when extrinsic evidence clarifies the parties’ intent or the real property at issue.
  • Deutsche Bank Natl. Trust Co. v Romano, 147 AD3d 1021 – similar treatment of clerical mistakes in instruments, permitting correction where identity of the mortgaged property is otherwise clear.

These precedents help the court treat the incorrect address in the note as a non‑fatal, clerical mistake. They support admitting evidence that the address in the 90‑day notices was the true address of the mortgaged premises.

4. Standing, Note Possession, and Endorsements

  • HSBC Bank USA, N.A. v Sene, 219 AD3d 1499; HSBC Bank USA, N.A. v Boursiquot, 204 AD3d 980 – both emphasize that when standing is challenged, plaintiff must establish it as part of the prima facie showing.
  • Deutsche Bank Trust Co. Ams. v McDonald, 216 AD3d 735 – confirms that standing is established by proof that the plaintiff was the holder or assignee of the note at commencement, and describes how attaching the note to the complaint suffices as a prima facie showing.
  • U.S. Bank N.A. v Rozo‑Castellanos, 201 AD3d 995 – explains that the mortgage follows the debt as an “inseparable incident.”
  • Bank of N.Y. Mellon v Swift, 213 AD3d 624 – clarifies that where the note is attached to the complaint, detailed proof of the date of delivery is unnecessary to establish prima facie standing.
  • Amalgamated Bank v Freue, 178 AD3d 890; JPMorgan Chase Bank, N.A. v Rosa, 169 AD3d 887 – illustrate reliance on an attached, properly endorsed note as sufficient to show standing.

Ciurleo aligns with these cases by acknowledging that Wells Fargo’s attachment of the endorsed note generally suffices to show standing. The decision then confronts what happens when that prima facie case collides with contrary documentary evidence from earlier litigation.

5. Conflicting Evidence, Lost‑Note Affidavits, and Triable Issues

  • CitiMortgage, Inc. v Barbery, 186 AD3d 448 – recognized that inconsistencies between a lost‑note affidavit and later possession claims can create factual issues precluding summary judgment.
  • U.S. Bank N.A. v Haughton, 189 AD3d 1305 – found triable issues where the bank’s documentary proof of standing conflicted with its own earlier litigation history.
  • JPMorgan Chase Bank, N.A. v Rodriguez, 201 AD3d 903 – triable issues arose when the sequencing of assignments and possession could not be resolved on the summary judgment record.

Ciurleo is a natural extension of this line: the court reiterates that when a borrower puts forward evidence that seriously calls the bank’s standing narrative into question, summary judgment is inappropriate unless the bank affirmatively dispels the contradictions.

V. Simplifying Key Legal Concepts

Several doctrinal concepts recur in the opinion. The following explanations may help non‑specialists.

1. Summary Judgment

Summary judgment is a procedural mechanism to decide a case (or part of it) without a trial when there is no genuine dispute of material fact.

  • The moving party (here, Wells Fargo) must first make a prima facie showing that it is entitled to judgment as a matter of law.
  • If that is done, the burden shifts to the opposing party (Ciurleo) to show specific facts demonstrating a triable issue of fact.
  • If conflicting affidavits or documents raise real factual disputes, the court must deny summary judgment and leave those issues for trial or further proceedings.

2. Condition Precedent (RPAPL 1304)

A “condition precedent” is something that must occur before a lawsuit can be properly brought or a right enforced. RPAPL 1304’s 90‑day notice is such a condition in residential mortgage foreclosures:

  • If the lender does not comply with RPAPL 1304, the foreclosure action is defective and must be dismissed or cannot proceed to judgment.
  • “Strict compliance” means that substantial adherence is not enough; the lender must prove that it followed the statute’s specific steps.

3. Standing in Foreclosure

“Standing” refers to a party’s legal right to bring a claim. In foreclosure, the plaintiff must show it is the person or entity entitled to enforce the debt:

  • Being the holder of the note (typically the entity in possession of the original note endorsed either in blank or specifically to it), or
  • Being the assignee of the note (having a valid written assignment of the note).

If standing is not proven when challenged, the foreclosure cannot proceed.

4. Endorsements and Note Possession

A promissory note can be:

  • Endorsed specifically to another party (e.g., “Pay to the order of Wells Fargo Bank, N.A.”), or
  • Endorsed in blank, turning it into a bearer instrument (whoever physically holds it is presumed entitled to enforce it).

In New York foreclosure practice:

  • Showing an endorsed note physically in the plaintiff’s possession before the case was filed usually suffices to prove standing.
  • Attaching a copy of that endorsed note to the complaint creates a presumption of possession.

5. Lost‑Note Affidavits

A “lost note affidavit” is a sworn statement used when the original promissory note cannot be located. The affiant typically attests that:

  • The note existed,
  • The plaintiff was entitled to enforce it,
  • It has been lost or destroyed, and
  • A diligent search has been conducted.

Such an affidavit can, in some cases, allow foreclosure to proceed without the original note. But if, in a later action, the plaintiff claims to have actually been in continuous possession of the original note since before the lost‑note affidavit was executed, that prior affidavit becomes a powerful tool for the borrower to argue:

  • That the new claim is inconsistent, and
  • That there is at least a factual dispute about who had the note, and when.

6. RPAPL 1304 Notice and Address Issues

RPAPL 1304 requires the lender to mail the notice to:

  • The borrower’s last known mailing address, and
  • The residence that is the subject of the mortgage.

If a loan document lists the wrong property address due to a typo, but the lender:

  • Mails the notice to the correct actual address of the mortgaged property, and
  • Can prove this through documents and affidavits (and the borrower confirms the address),

then the lender has likely satisfied RPAPL 1304, despite the earlier clerical error.

VI. Practical and Doctrinal Impact

A. Implications for Lenders and Servicers

  1. Document and explain address discrepancies.
    Lenders should:
    • Audit loan documents to identify any address inconsistencies early,
    • Use the correct, actual property address on all RPAPL 1304 notices, and
    • Be prepared to supply evidence (tax records, prior correspondence, borrower admissions) proving that the address used is the true mortgaged premises.
  2. Maintain a coherent note‑possession history.
    Any prior lost‑note affidavits, assignments, and endorsements must be fully understood and reconciled. If a note once was claimed “lost” but has later been recovered:
    • The bank must be ready to explain the recovery,
    • Identify when and how it came back into the bank’s possession, and
    • Address any inconsistency with current claims of continuous possession.
  3. Treat earlier litigation as part of the record in all subsequent actions.
    Prior foreclosure suits involving the same loan are not invisible; defendants will unearth and use them. Inconsistent statements from prior cases can undermine present summary judgment efforts.

B. Implications for Borrowers and Defense Counsel

  1. Examine RPAPL 1304 carefully, but focus on real defects.
    After Ciurleo, hyper‑technical attacks on harmless typographical issues in underlying documents are less likely to succeed when:
    • The borrower actually received the notice at the correct address, and
    • There is evidence (including borrower admissions) confirming the accuracy of the notice’s address.
  2. Mine prior litigation for standing issues.
    Defense counsel should:
    • Obtain and scrutinize records from earlier foreclosure actions on the same property,
    • Look for lost‑note affidavits, inconsistent endorsements, or varying descriptions of who held the note when,
    • Use those materials to argue that summary judgment is inappropriate due to unresolved factual disputes over standing.
  3. Use borrower affidavits strategically.
    Borrowers should avoid unintentionally conceding critical facts (such as correct addresses or receipt of notices) unless those concessions are part of a deliberate strategy; here, Ciurleo’s confirmation of the address effectively eliminated his RPAPL 1304 defense.

C. Systemic Effects on New York Foreclosure Practice

Doctrinally, Ciurleo:

  • Continues the Second Department’s trend of rigorous but realistic enforcement of RPAPL 1304, focusing on actual notice over mere formal misprints.
  • Strengthens the role of standing as a robust defense when supported by concrete documentary conflicts, especially from prior litigation history.
  • Encourages more thorough and transparent foreclosure motion practice, where banks must proactively address inconsistencies instead of relying on formal presumptions alone.

VII. Conclusion

Wells Fargo Bank, N.A. v. Ciurleo refines New York foreclosure law on two fronts:

  1. On RPAPL 1304, the Second Department confirms that “strict compliance” requires functional, not purely formal, adherence: a lender that proves proper mailing of the statutory 90‑day notice to the actual mortgaged premises, supported by business records and borrower admissions, will not be defeated by a typographical error in the note’s address line. The decision prevents the statute from being transformed into a trap for inconsequential clerical mistakes.
  2. On standing, the court underscores that attaching an endorsed note to the complaint yields a strong prima facie showing, but that showing is not absolute. Where earlier lost‑note affidavits and prior unendorsed note filings contradict a lender’s current narrative of continuous possession, summary judgment must be denied unless the lender provides a coherent, evidence‑based explanation. Standing remains a live, fact‑driven issue capable of defeating summary judgment when borrowers deploy the record effectively.

In the broader legal context, Ciurleo illustrates the balance New York courts continue to strike: they demand procedural and substantive compliance from lenders in residential foreclosures, yet resist dismissing cases on purely technical grounds when the evidence shows borrowers were properly notified and the real disputes lie elsewhere—such as who, exactly, owns and can enforce the debt.

Case Details

Year: 2025
Court: Appellate Division of the Supreme Court, New York

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