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CaseIQ

Bank of Am., N.A. v. Maddox

Appellate Division of the Supreme Court, New York

Oct 21, 2026

Judgment

CaseIQ

Bank of Am., N.A. v Maddox

2026 NY Slip Op 06084 October 21, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Bank of America, N.A., respondent,

Robert Maddox, etc., appellant, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 21, 2026

2018-13041, 2018-14064, 2020-09650, 2020-09652, 2025-10948, (Index No. 78/14) Valerie Brathwaite Nelson, J.P.

Paul Wooten

William G. Ford

Janice A. Taylor, JJ.

Rosenberg & Estis, P.C., New York, NY (Christopher A. Gorman of counsel), for appellant. Bryan Cave Leighton Paisner LLP, New York, NY (Suzanne M. Berger and Elizabeth Goldberg of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Robert Maddox, as executor of the estate of Alice McNamara, appeals from (1) two orders of the Supreme Court, Suffolk County (Linda J. Kevins, J.), both dated July 19, 2018, (2) an order of the same court (Michael A. Gajdos, Jr., J.) dated March 5, 2020, (3) an order and judgment of foreclosure and sale (one paper) of the same court (Michael A. Gajdos, Jr., J.) also dated March 5, 2020, and (4) an order and judgment of foreclosure and sale (one paper) of the same court (Peter R. McGreevy, J.) dated June 23, 2025. The first order dated July 19, 2018, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Alice Mc Namara, also known as Alice McNamara, to dismiss her affirmative defenses alleging lack of standing and failure to comply with RPAPL 1304, and for an order of reference, and denied that branch of the cross-motion of Alice Mc Namara, also known as Alice McNamara, which was for summary judgment dismissing the complaint insofar as asserted against her for failure to comply with RPAPL 1306. The second order dated July 19, 2018, insofar as appealed from, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff. The order dated March 5, 2020, granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale. The order and judgment of foreclosure and sale dated March 5, 2020, inter alia, directed the sale of the subject property. The order and judgment of foreclosure and sale dated June 23, 2025, inter alia, directed the sale of the subject property. By order to show cause dated November 18, 2020, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeals from the orders dated July 19, 2018, on the ground that the right of direct appeal from the orders terminated upon entry of the order and judgment of foreclosure and sale dated March 5, 2020. By decision and order on motion of this Court dated January 25, 2021, the motion to dismiss the appeals from the orders dated July 19, 2018, was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

[*1]

DECISION & ORDER By order to show cause dated September 26, 2025, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order and judgment of foreclosure and sale dated March 5, 2020, on the ground it has been rendered academic and/or on the ground it has been superseded by the order and judgment of foreclosure and sale dated June 23, 2025, and why an order should or should not be made and entered dismissing the appeals from the orders dated July 19, 2018, and March 5, 2020, on the ground that the right of direct appeal from the orders terminated upon entry of the order and judgment of foreclosure and sale dated June 23, 2025. By decision and order on motion of this Court dated February 2, 2026, the motion to dismiss the appeal from the order and judgment of foreclosure and sale dated March 5, 2020, and to dismiss the appeals from the orders dated July 19, 2018, and March 5, 2020, was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon submission thereof.

Upon the orders to show cause and the papers filed in response thereto, it is

ORDERED that the motion to dismiss the appeal from the order and judgment of foreclosure and sale dated March 5, 2020, and to dismiss the appeals from the orders dated July 19, 2018, and March 5, 2020, on the ground that the right of direct appeal from those orders terminated upon entry of the order and judgment of foreclosure and sale dated June 23, 2025, is granted; and it is further,

ORDERED that the motion to dismiss the appeals from the orders dated July 19, 2018, on the ground that the right of direct appeal from those orders terminated upon entry of the order and judgment of foreclosure and sale dated March 5, 2020, is denied as academic; and it is further,

ORDERED that the appeals from the orders dated July 19, 2018, and March 5, 2020, and the appeal from the order and judgment of foreclosure and sale dated March 5, 2020, are dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale dated June 23, 2025, is reversed, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Alice Mc Namara, also known as Alice McNamara, to dismiss her affirmative defenses alleging lack of standing and failure to comply with RPAPL 1304, and for an order of reference are denied, the orders dated July 19, 2018, are modified accordingly, and the order dated March 5, 2020, is vacated; and it is further,

ORDERED that one bill of costs is awarded to the defendant Robert Maddox, as executor of the estate of Alice McNamara.

The appeals from the orders dated July 19, 2018, and the order dated March 5, 2020, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale dated June 23, 2025, in this action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale dated June 23, 2025 (see CPLR 5501[a][1]; Matter of Aho, 39 NY2d at 241). The appeal from the order and judgment of foreclosure and sale dated March 5, 2020, must be dismissed as academic because that order and judgment of foreclosure and sale was vacated by order of the Supreme Court dated April 30, 2024. On January 23, 2006, Michael McNamara, Sr. (hereinafter Michael), executed a note in the sum of $400,000 in favor of American Brokers Conduit, which was secured by a mortgage on certain residential property located in Babylon. The mortgage was executed by Michael and his wife,

Alice McNamara (hereinafter Alice). Alice and Michael allegedly defaulted on their obligations under the note and mortgage by failing to make the monthly payments due on May 1, 2009, and thereafter. On September 9, 2010, Michael died.

In January 2014, the plaintiff, Bank of America, N.A., commenced this action to foreclose the mortgage against, among others, Alice. Alice interposed an answer in which she asserted various affirmative defenses, including lack of standing and failure to comply with RPAPL 1304. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Alice, to dismiss Alice's affirmative defenses alleging lack of standing and failure to comply with RPAPL 1304, and for an order of reference. Alice cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against her for failure to comply with RPAPL 1306. In an order dated July 19, 2018, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied that branch of Alice's cross-motion. In a second order dated July 19, 2018, the court, among other things, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff. In an order dated March 5, 2020, the court granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale. The court then issued an order and judgment of foreclosure and sale, also dated March 5, 2020, inter alia, directing the sale of the property. The court subsequently vacated that order and judgment of foreclosure and sale and issued an order and judgment of foreclosure and sale dated June 23, 2025, among other things, directing the sale of the property. These appeals ensued.

While the subject appeals were pending, Alice died. Robert Maddox, as executor of Alice's estate (hereinafter the defendant), has been substituted for Alice in this action and on the appeals.

"Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition"

(Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126, 131-132 [citations and internal quotation marks omitted]). Pursuant to RPAPL 1304(1), "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "RPAPL 1304(2) requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower and to the residence that is the subject of the mortgage" (Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232, 1236). "A plaintiff demonstrates its compliance with the statute 'by proof of the requisite mailing, which can be established [by] proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure'" (U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757, 759, quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 21). Contrary to the plaintiff's contention, Alice was entitled to notice pursuant to RPAPL 1304 as a "borrower" within the meaning of that statute. Although Alice did not sign the subject note, she executed the mortgage as "Borrower," she was identified as a borrower on the first page of the mortgage agreement, and she agreed in the mortgage agreement to pay the amounts due under the note. "'Where, as here, a homeowner defendant is referred to as a "borrower" in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a "borrower"

for the purposes of RPAPL 1304, notwithstanding . . . any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured'"

(HSBC Bank USA, N.A. v Kalenborn, 215 AD3d 930, 932, quoting Deutsche Bank Natl. Trust Co. v Weininger, 206 AD3d 882, 883; see Green Tree Servicing, LLC v Helmsorig, 227 AD3d 1053).

Furthermore, the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. In support of its motion, the plaintiff submitted, inter alia, an affidavit of Nichole Renee Williams, an officer of the plaintiff. Williams averred that, based upon her review of business records of the plaintiff and its predecessor in interest, a 90-day notice was served upon Alice by certified and first-class mail. However, Williams neither attested that she had personal knowledge of the mailings, nor specifically described the procedures in place designed to ensure that 90-day [*2]notices are properly addressed and mailed by both first-class and registered or certified mail (see Wilmington Trust, N.A. v Meyerhoeffer, 219 AD3d 549, 551; Bank of N.Y. Mellon v Sae Young Min, 201 AD3d 854, 856; Freedom Mtge. Corp. v Granger, 188 AD3d 1163, 1165). Further, although the plaintiff submitted proof of mailing of the 90-day notice by certified mail, the plaintiff failed to present proof that the notice was actually sent by first-class mail more than 90 days prior to commencement of the action (see US Bank N.A. v McQueen, 221 AD3d 1049, 1051). Thus, the plaintiff failed to establish, prima facie, its compliance with RPAPL 1304 (see Federal Natl. Mtge. Assn. v Raja, 211 AD3d 692, 696). Additionally, the plaintiff failed to establish, prima facie, its standing to commence the action. "Where, as here, 'the issue of standing is raised by a defendant in a mortgage foreclosure action, a plaintiff must prove its standing in order to be entitled to relief against that defendant'" (US Bank N.A. v Bochicchio, 179 AD3d 1133, 1134, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 203). "A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced" (U.S. Bank N.A. v McEntee, 176 AD3d 1136, 1138). "'Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident'" (Deutsche Bank Natl. Trust Co. v Motzen, 207 AD3d 434, 435, quoting Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828). Here, the record does not reflect that a copy of the endorsed note was annexed to the complaint when the action was commenced (see Deutsche Bank Natl. Trust Co. v Crosby, 201 AD3d 878, 881-882). Moreover, the plaintiff failed to establish its status as the holder of the note based on Williams's affidavit (see id. at 882). Since Williams's assertions regarding the plaintiff's possession of the note prior to the commencement of the action were based upon her review of unidentified and unproduced business records, those assertions constituted inadmissible hearsay (see Wells Fargo Bank, N.A. v Carrington, 221 AD3d 746; HSBC Bank USA, N.A. v Boursiquot, 204 AD3d 980, 982-983; Wells Fargo Bank, NA v Oziel, 196 AD3d 618, 621). Consequently, the plaintiff failed to establish, prima facie, its standing to commence the action.

Accordingly, since the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against Alice, to dismiss Alice's affirmative defenses alleging lack of standing and failure to comply with RPAPL 1304, and for an order of reference, without regard to the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

However, the Supreme Court properly denied that branch of Alice's cross-motion which was for summary judgment dismissing the complaint insofar as asserted against her for failure to comply with RPAPL 1306. "RPAPL 1306 provides, in pertinent part, that within three business days of the mailing of the foreclosure notice pursuant to RPAPL 1304(1), every lender or assignee 'shall file' certain information with the superintendent of financial services, including 'at a minimum, the name, address, last known telephone number of the borrower, and the amount claimed as due and owing on the mortgage, and such other information as will enable the superintendent to ascertain the type of loan at issue'"

(HSBC Bank USA, N.A. v Bermudez, 175 AD3d 667, 669, quoting RPAPL 1306[1], [2]). Compliance with RPAPL 1306 is a condition precedent to the commencement of a foreclosure action (see HSBC Bank USA, N.A. v Bermudez, 175 AD3d at 670; Hudson City Sav. Bank v Seminario, 149 AD3d 706, 707).

Contrary to the defendant's contention, the plaintiff was not required to file a proof of filing statement pursuant to RPAPL 1306 as to both Alice and Michael's estate, since "a filing [pursuant to RPAPL 1306] that includes information about only one borrower is sufficient under the statute" (CIT Bank N.A. v Schiffman, 36 NY3d 550, 560; see Federal Natl. Mtge. Assn. v Hollien, 198 AD3d 615, 618). Moreover, the plaintiff established, prima facie, its compliance with RPAPL 1306 by submitting a proof of filing statement indicating that the RPAPL 1306 notice was served upon Michael's estate. In opposition, Alice failed to raise a triable issue of fact. Accordingly, the Supreme Court properly denied that branch of Alice's cross-motion which was for summary judgment dismissing the complaint insofar as asserted against her for failure to comply with RPAPL [*3]1306.

BRATHWAITE NELSON, J.P., WOOTEN, FORD and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court