In a case of appellate first impression in New York, the Appellate Division, Second Department, held that a mortgagor cannot make a Real Property Actions and Proceedings Law (“RPAPL”) 1304 argument in opposition to a motion for Judgment of Foreclosure and Sale – even if that was pled as a defense in the mortgagor’s Answer – where the prior summary judgment motion was unopposed.
In Wells Fargo Bank, N.A. v. Harrigan, after the lender commenced a foreclosure action in Suffolk County against the mortgagor, the mortgagor filed an Answer, containing an RPAPL 1304 compliance defense, specifically that a 90-day notice was not properly mailed. The lender moved for summary judgment and the mortgagor failed to oppose that motion, apparently because of some unspecified law office failure. Thereafter, the lender moved for Judgment of Foreclosure and Sale and the mortgagor cross-moved for vacatur of the summary judgment order and dismissal of the action based on the lender’s purported failure to demonstrate RPAPL 1304 compliance.
At the Supreme Court, Justice Heckman granted the lender’s motion and denied the mortgagor’s cross-motion, reasoning that the mortgagor waived the RPAPL 1304 defense by failing to oppose the summary judgment motion and raise the argument there. Any arguments pertaining to RPAPL 1304 were therefore barred by the law of the case doctrine. The mortgagor appealed this decision to the Appellate Division, Second Department.
On the appeal, the mortgagor argued that it was the lender’s burden to prove its compliance with the RPAPL 1304 90-day notice mailing requirements in its summary judgment motion, notwithstanding the mortgagor’s failure to oppose the motion, and that the lender failed to do so. The mortgagor further argued that, the lender’s mailing proofs constituted inadmissible hearsay and, in any event, did not demonstrate the mailing of the requisite 90-day notices, and therefore, regardless of whether the mortgagor opposed the summary judgment motion, the mortgagor was entitled to vacatur of summary judgment and/or dismissal.
The Second Department rejected the mortgagor’s arguments in their entirety. In fact, the Second Department did not even reach the merits of the case, holding that the mortgagor “did not adequately detail and substantiate the alleged law office failure which resulted in his failure to oppose the [lender’s] motion for summary judgment, and thus failed to demonstrate a reasonable excuse for his default.” Under those circumstances, a RPAPL 1304 defense was not available in opposition to the motion for judgment of foreclosure and sale. This holding therefore precludes the argument that RPAPL 1304 compliance is part of the plaintiff’s prima facie case in a foreclosure.
The Second Department had issued one similar decision in 2019. In Wells Fargo Bank, N.A. v. Coffey, the Second Department held that a mortgagor’s RPAPL 1303 argument – concerning whether the notice served with the Complaint was facially complaint with the statute – was improperly brought at the Judgment of Foreclosure and Sale stage because the mortgagor failed to respond to both the Complaint and the summary judgment motion.
The Harrigan decision, however, goes even further, as it is the first appellate decision standing for the proposition that an RPAPL 1304 argument is waived, even when asserted as a defense in an Answer, where the underlying summary judgment motion is unopposed. This decision will be useful to financial institutions trying to protect itself from belated challenges to mailing requirements.
 Wells Fargo Bank, N.A. v. Harrigan, _ A.D. 3d _ (2d Dept. Jan. 29, 2020).
 Wells Fargo Bank, N.A. v. Coffey, 177 A.D.3d 1022 (2d Dept. 2019).