FILED: SUFFOLK COUNTY CLERK 06/16/ :59 PM INDEX NO /2015 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/16/2016

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1 FILED: SUFFOLK COUNTY CLERK 06/16/ :59 PM INDEX NO /2015 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/16/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust, Inc AHL1, Asset-Backed Pass- Through Certificates Series 2007-AHL1 v. Plaintiff, Thomas Fitzgerald a/k/a Thomas J. Fitzgerald; Casie Tighe a/k/a Casie Ann Tighe; Aames Funding Corporation DBA Aames Home Loan; Cavalry SPV I LLC as assignee of Bank of America FIA Card Services, NA and JOHN DOE, said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest in or lien upon the mortgaged premises, Index No.: /2015 MEMORANDUM OF LAW Property Address: 17 OVERLOOK DRIVE MASTIC BEACH, NY Defendants. DEFENDANT S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF S MOTION FOR ORDER OF REFERENCE AND IN SUPPORT OF HIS CROSS- MOTION FOR SUMMARY JUDGMENT TO DISMISS THE CASE IN ITS ENTIRETY LAW OFFICE OF JOHN GONZALEZ, P.C. JOHN GONZALEZ, ESQ. 258 HAWKINS AVENUE Ronkonkoma, NY Tel.: (631) Attorneys for Defendant DATED: June 14, of 37

2 TABLE OF CONTENTS PRELIMINARY STATEMENT FACTUAL AND PROCEDURAL BACKGROUND I. THE PARTIES II. THE SUBJECT LOAN TRANSACTION & UNDERLYING INSTRUMENTS III. THE INSTANT FORECLOSURE ACTION LEGAL STANDARD I. SUMMARY JUDGMENT STANDARD II. RPAPL 1303 HELP FOR HOMEOWNERS IN FORECLOSURE STANDARD ARGUMENT I. DEFENDANT S CROSS-MOTION FOR SUMMARY JUDGMENT MUST BE GRANTED IN LIGHT OF PLAINTIFF S FAILURE TO DEMONSTRATE COMPLIANCE WITH SECTION 1303 OF THE RPAPL II. PLAINTIFF FAILED TO COMPLY WITH SECTION 22 OF THE MORTGAGE, WARRANTING SUMMARY JUDGMENT FOR DEFENDANT AND THE DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY A. Plaintiff Failed to Demonstrate that the Purported Notice of Default Was Served on Defendant in Compliance With the Terms of the Mortgage, Warranting Summary Judgment for Defendant and the Dismissal of the Complaint in its Entirety B. Plaintiff s Purported Notice of Default is Defective in That it Does Not Provide an Explicit Sum to Cure the Default C. The Notice of Default was Not Sent by a Proper Party III. PLAINTIFF FAILED TO PROVE THAT IT SERVED ON DEFENDANT A NOTICE WHICH COMPLIES WITH RPAPL 1304, WARRANTING SUMMARY JUDGMENT FOR DEFENDANT AND THE DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY of 37

3 IV. PLAINTIFF FAILED TO DEMONSTRATE STANDING TO PROCEED WITH THIS ACTION, WARRANTING SUMMARY JUDGMENT FOR DEFENDANT AND THE DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY A. Plaintiff Failed to Demonstrate That the Note was Physically Delivered to Plaintiff B. The Assignments Dated May 5, 2009 and November 25, 2009 Failed to Assign the Note to Plaintiff CONCLUSION [THIS SECTION INTENTIONALLY LEFT BLANK] 3 3 of 37

4 PRELIMINARY STATEMENT Defendant, Thomas Fitzgerald, submits this memorandum of law in opposition to Plaintiff s Motion for an Order of Reference and in Support of Defendant s Cross-Motion for Summary Judgment to Dismiss the Case (Mot. Seq. 001), which seeks: [i] an Order, denying plaintiff s motion for an Order of Reference; and [ii] an Order, pursuant to CPLR 3212, granting Defendant s Cross-Motion for Summary Judgment for the Dismissal of Plaintiff s Complaint in its entirety, based on Plaintiff s failure to satisfy the conditions precedent set forth under RPAPL 1303; [iii] an Order, pursuant to CPLR 3212, granting Defendant s Cross-Motion for Summary Judgment for the Dismissal of Plaintiff s Complaint in its entirety, based on Plaintiff s failure to satisfy the conditions precedent set forth under the terms of the mortgage; [iv] an Order, pursuant to CPLR 3212, granting Defendant s Cross-Motion for Summary Judgment for the Dismissal of Plaintiff s Complaint in its entirety, based on Plaintiff s failure to satisfy the conditions precedent set forth under RPAPL 1304; [v] an Order, pursuant to CPLR 3212, granting Defendant s Cross-Motion for Summary Judgment for the Dismissal of Plaintiff s Complaint in its entirety, based on Plaintiff s failure to establish its standing to maintain the instant action; and [vi] an Order, for such other and further relief that this Court may deem just, proper, and appropriate. Referenced and cited to herein are the following papers: [i] Notice of Motion, dated June 14, 2016; [ii] Proposed Order; [iii] the Affidavit of Thomas Fitzgerald, dated June 14, 2016 ( Fitzgerald Aff. ); [iv] the Affirmation of John Gonzalez, dated June 14, 2016 ( Gonzalez Aff. ); [v] the Affirmation of Scott Ferraro dated May 9, 2016 ( Ferraro 4 4 of 37

5 Aff.); [vi] the Affidavit of Jack Whitmarsh, dated March 31, 2016 ( Whitmarsh Aff. ); and [vii] the Defendant s instant Memorandum of Law, dated June 14, 2016 ( Def Mem. ). FACTUAL AND PROCEDURAL BACKGROUND I. THE PARTIES Defendant, Thomas Fitzgerald (referred to herein as Defendant ), has at all times herein relevant, resided at the premises located at 17 Overlook Drive, Mastic Beach, New York (the Subject Property ) as his primary residence. Plaintiff U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust, Inc AHL1, Asset-Backed Pass-Through Certificates Series 2007-AHL1 ( Plaintiff ) is a banking or other financial services entity organized and existing under the laws of the United States. II. THE SUBJECT LOAN TRANSACTION & UNDERLYING INSTRUMENTS In order to meet certain financial obligations in connection with his home, on or about August 9, 2006, Thomas Fitzgerald, along with Casie Tighe, entered into a mortgage transaction with Aames Funding Corporation DBA Aames Home Loan, the alleged predecessor in interest of Plaintiff. See Exhibit A, Mortgage. With respect to the subject Loan Transaction, on or about August 9, 2006, Defendant executed a promissory note, in favor of Aames Funding Corporation DBA Aames Home Loan. See Exhibit B, Note. A loan modification agreement dated June 9, 2011 between Thomas Fitzgerald, Casie Tighe and Wells Fargo Bank, N.A. purportedly modified the underlying instruments. By way of an assignment of mortgage dated May 5, 2009, the aforesaid mortgage was purportedly assigned from Accredited Home Lenders, Inc. successor by merger to Aames Funding Corporation DBA Aames Home Loan to U.S. Bank 5 5 of 37

6 National Association, as Trustee for Asset-Backed Pass-Through Certificates, Series AHL1. See Exhibit C, Assignment of Mortgage. By way of a corrective assignment of mortgage dated December 5, 2014, the aforesaid mortgage was purportedly assigned from Accredited Home Lenders, Inc. successor by merger to Aames Funding Corporation DBA Aames Home Loan to Plaintiff. See Exhibit D, Corrective Assignment of Mortgage.. III. THE INSTANT FORECLOSURE ACTION Plaintiff commenced this residential foreclosure action by filing a Notice of Pendency, Summons and Complaint (collectively referred to hereinafter as the subject Complaint ) (Exhibit E) in and through the e-file system in Suffolk County, on February 20, 2015, under Index No.: /2015. Defendant served an answer on May 30, 2015 (the Answer ). See Exhibit F. On or about May 18, 2016, Plaintiff filed a Motion for an Order of Reference, which is presently before this Court. (Exhibit G). LEGAL STANDARD I. SUMMARY JUDGMENT STANDARD In relevant part, CPLR 3212(a) provides that any party may move for summary judgment in an action, after issue has been joined.... Pursuant to CPLR 3212(b), a motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. It is well settled that [t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Winegrad v. NY Univ. 6 6 of 37

7 Med Ctr., 64 N.Y.2d 851, 853 (1985); citing Zuckerman v. City of NY, 49 N.Y.2d 557, 562 (1980). It is equally well settled that once the movant s initial burden of establishing that no genuine issue of material facts exists, the burden then shifts to the party opposing the motion for summary judgment to come forward with evidence showing the existence of a triable fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, (1986). Conclusory allegations unsupported by competent evidence is insufficient to defeat a summary judgment motion. Id. II. RPAPL 1303 HELP FOR HOMEOWNERS IN FORECLOSURE STANDARD RPAPL 1303 is a condition precedent which is the plaintiff s burden to meet, and which does not have to be raised as an affirmative defense in the answer. First Natl. Bank of Chicago v. Silver, 73 A.D.3d at 165 (2d Dep t 2010); see also Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 98 (2d Dep t 2011) ( Proper service of RPAPL 1303 notice with the summons and complaint is a condition precedent to the commencement of the action, and noncompliance results in dismissal of the complaint. ). Since RPAPL 1303, contains specific, mandatory language in keeping with the underlying purpose of HETPA to afford greater protections to homeowners confronted with foreclosure... [;] [a] plaintiff s failure to show strict compliance requires dismissal. Weisblum, 85 A.D.3d at 103, citing Silver at 165 (bold emphasis added). 7 7 of 37

8 ARGUMENT I. DEFENDANT S CROSS-MOTION FOR SUMMARY JUDGMENT MUST BE GRANTED IN LIGHT OF PLAINTIFF S FAILURE TO DEMONSTRATE COMPLIANCE WITH SECTION 1303 OF THE RPAPL Section 1303 of the R.P.A.P.L. requires the foreclosing party in a foreclosure action involving an owner-occupied one-to-four family dwelling to serve a notice on the mortgagor with the summons and complaint which provides information about the foreclosure process. N.Y. R.P.A.P.L (2012). First Natl. Bank of Chicago v. Silver, 73 A.D.3d 162 (2d Dep t 2010), is the controlling authority on matters related to the notice requirement set forth under RPAPL 1303: HETPA [i.e., the Home Equity Theft Prevention Act] was enacted in July 2006 to afford greater protections to homeowners confronted with foreclosure. Id. HETPA, effective on February 1, 2007, requires the foreclosing party in a residential mortgage foreclosure action to deliver statutory-specific notice to the homeowner, together with the summons and complaint. see RPAPL 1303(1). Specifically, RPAPL 1303(2) as enacted, stated: [t]he notice required by this section shall be delivered with the summons and complaint to commence a foreclosure action. The notice required by this section shall be in bold, fourteen-point type and shall be printed on colored paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold, twenty-point type. The notice shall be on its own page. First Natl. Bank of Chicago v Silver, 73 AD3d at 165 [2d Dept 2010]. The Silver Court held and instructed the lower courts that a foreclosing plaintiff s strict compliance with RPAPL 1303 is a condition precedent which is the plaintiff s burden to meet, and which does not have to be raised as an affirmative defense in the answer. Id. at 169; accord Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 98 (2d Dep t 2011) ( Proper service of RPAPL 1303 notice with the summons and complaint is a condition precedent to the 8 8 of 37

9 commencement of the action, and noncompliance results in dismissal of the complaint. ). Since RPAPL 1303, contains specific, mandatory language in keeping with the underlying purpose of HETPA to afford greater protections to homeowners confronted with foreclosure... [a] plaintiff s failure to show strict compliance requires dismissal. Weisblum, 85 A.D.3d at 103; citing Silver at 165 (bold emphasis added). It has been conclusively established that the plaintiff must submit proper evidentiary proof to establish full compliance with the substantive and procedural requirements of RPAPL Silver at 166; quoting Countrywide Home Loans, Inc. v. Taylor, 17 Misc. 3d 595, 599 (Sup Ct. Suffolk Co. 2007). Courts have consistently held that the only way a foreclosing Plaintiff conclusively meets its evidentiary burden of full compliance with the substantive and procedural requirements of RPAPL 1303 is through the submission of an unrefuted affidavit of personal service of such. E.g., US. Bank N A. v. Tate, 102 A.D.3d 859, 859 (2d Dep t 2013) ( The process server s affidavit of service constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308 [2] and of proper service of the notice required by RPAPL ); Weisblum at 103 (Plaintiff satisfied this burden with affidavits of service establishing proper service on both of the Weisblums of the RPAPL 1303 notice with the statutorily-required content, printed in the required type size on colored paper. ); Ponce De Leon Fed. Bank v. Kaplan, 2014 NY Slip Op [U] at (Sup Ct, NY Co. 2014) ( [P]laintiff has made a sufficient showing that it satisfied the condition precedent of properly serving the RPAPL 1303 notice on Defendants... by submitting an affidavit of service from the process server that the summons and complaint was personally delivered to Defendants Kaplan on November 11, 2011 at 3:24 p.m. at 66 Morton Street, New York, New York, along with an Additional Notice, Help For Homeowners in Foreclosure, on colored paper in compliance with RPAPL, Sect 1303 served 9 9 of 37

10 therewith. ); Cent. Mtge. Co. v. Abraham, 2014 NY Slip Op [U] at 144 (Sup Ct. Suffolk Co. 2014) ( Here, plaintiff satisfied its burden by submitting a copy of the affidavit of service establishing proper service pursuant to CPLR 308 [1] on Defendants Abraham of the RPAPL 1303 notice with the statutorily-required content, printed in the required type size on colored paper. ); Citibank, N A. v. Wood, 2014 NY Slip Op [U] at 144 (Sup Ct. Suffolk Co. 2014) ( Here, the plaintiff satisfied its burden that service of the RPAPL 1303 notice was properly made with the summons and complaint by submitting a copy of the affidavit of service establishing proper service on Joseph Wood of the RPAPL 1303 notice with the statutorilyrequired content, printed in the required type size on colored paper. ). However, in the case at hand, Plaintiff s affidavit is not unrefuted, as Defendant s own sworn testimony specifically refutes proper service. (See Fitzgerald Aff. 6) ( I, Thomas Fitzgerald, hereby unequivocally attest and swear to the fact that I was never served with, nor did I receive by mail or any other means, the mandatory form and language as set forth under RPAPL ). It is true that a bare denial of receipt of notice under RPAPL 1303 is insufficient to rebut an affidavit of service of such notice. see Tate, 102 A.D.3d at 859. However, here, although Plaintiff has provided an affidavit of service alleging proper service of the RPAPL 1303 notice (see Foley Affidavit of Service, 2), the Defendant s sworn testimony specifically contests this in his own sworn affidavit and, upon the Court s review of the Plaintiff s papers, the Court will realize that the original subject Complaint is completely devoid of the actual mandatory colored RPAPL 1303 notice. More importantly, the Affirmation of Scott Ferraro, dated May 9, 2016 readily admits (whether deliberately or not) that the RPAPL 1303 notice was not sent on colored paper by exhibiting the alleged RPAPL 1303 as a non of 37

11 colored notice. Likewise, a review of the e-filed Summons and Complaint and Affidavits of Service do not reveal a colored RPAPL 1303 anywhere. In Deutsche Bank Nat l Trust Co. v. Day, Justice Pitts discussed the specificity required to demonstrate compliance with R.P.A.P.L. 1303: Evidentiary proof, including an attorney's affirmation of compliance with the form, type size, type face, paper color and content requirements of RPAPL 1303 regarding foreclosure notices, as well as an affidavit of proper service of such notice (see, First Nat'l Bank of Chicago v Silver, 73 A.D.3d 162 [2d Dept 2010]). In the affidavit of service submitted, the plaintiffs process server docs not specifically allege that defendant mortgagor has been served with the summons and verified complaint printed on while paper along with the required foreclosure notice pursuant to RPAPL 1303 printed on color paper other than the color of the summons and complaint. Also, counsel's affirmation is devoid of any allegations of compliance with the specific requirements of RPAPL The bare recitation in the affidavits of service that the defendant mortgagor was served with the summons and complaint for foreclosure of a mortgage, notice of pendency and notice pursuant to RPAPL Section 1303 on blue colored paper bearing Index No # 2728/2011, is insufficient to establish compliance with RPAPL Deutsche Bank Nat l Trust Co. v. Day, Index No. 2728/11 (Sup. Ct. Suffolk Co. Dec. 15, 2011). In the case herein, Plaintiff, through its own exhibited evidence has proven that the RPAPL 1303 notice was not on colored paper; and that if it was on colored paper, the alleged document Plaintiff exhibited as the actual notice was erroneous. In neither of these cases, can we say that the Plaintiff has satisfied its burden to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Moreover, the Court cannot find that plaintiff s mere reliance on a refuted affidavit of service can establish its prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case, when through of 37

12 Plaintiff s own exhibits, the alleged 1303 notice is colorless, and through the Court s own examination of the record, no colored 1303 notice appears as an exhibit, all of which corroborates Mr. Fitzgerald s sworn testimony. Plaintiff is simply relying on an erroneous affidavit of service as its sole basis for alleging compliance with RPAPL 1303; otherwise, Plaintiff would have supplied the actual colored notice itself which it cannot do without perjuring itself. Similarly, the affidavits of service submitted by Plaintiff fail to demonstrate compliance with R.P.A.P.L as they fail to specify if the color of the paper on which the Summons and Complaint was purportedly served differs from the color of the paper on which the Purported 1303 Notice was purportedly served or confirm that the Purported 1303 Notice was served on a separate sheet of paper. See Exhibit H, Affidavits of Service. Further, since Plaintiff s attorneys did not serve the Purported 1303 Notice directly, the statements made in the Attorney Affirmation submitted by Plaintiff s attorneys regarding the details of service of the Purported 1303 Notice, to the extent they are not substantiated by the affidavit of service or other admissible evidence, are not made on personal knowledge and are therefore without probative value. In addition, Defendant denies receipt of the Purported 1303 Notice. See Fitzgerald Aff., 6. Accordingly, Plaintiff has failed to demonstrate strict compliance with R.P.A.P.L. 1303, and the action must be dismissed. Lastly, Plaintiff has absolutely no nunc pro tunc remedies to its avail to cure the fatal defect with its action by failing to provide evidence of its full compliance and satisfaction of RPAPL Compare Silver at 166; see also Taylor, 17 Misc. 3d at 599 ( [m]erely annexing a copy of a purportedly compliant notice does not provide a sufficient basis upon which the court of 37

13 may conclude as a matter of law that the plaintiff [foreclosing party] has complied. ); WMC Mtge. Corp. v. Thompson, 24 Misc. 3d 738, 739 (Sup Ct, Kings Co. 2009) ( [T]he only way to cure the failure to comply with the explicit statutory requirements of RPAPL 1303 was by the proper service of the summons and complaint, along with the notice required by RPAPL ). Thus, in light of Plaintiff s demonstrable failure to provide the Defendant with proper notice under RPAPL 1303, and failure to demonstrate strict compliance with RPAPL 1303, this court must grant Defendant s instant motion, and must also dismiss Plaintiff s underlying foreclosure complaint in its entirety. II. PLAINTIFF FAILED TO COMPLY WITH SECTION 22 OF THE MORTGAGE, WARRANTING SUMMARY JUDGMENT FOR DEFENDANT AND THE DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY. A. Plaintiff Failed To Demonstrate That The Purported Notice Of Default Was Served On Defendant In Compliance With The Terms Of The Mortgage, Warranting Summary Judgment For Defendant And The Dismissal Of The Complaint In Its Entirety Because Plaintiff failed to prove that it served the purported Notice of Default on defendant in the manner required by sections 15 and 22 of the mortgage, dismissal of the complaint is required. Section 22 of the Mortgage dated August 9, 2006, reads as follows: of 37

14 See Exhibit A, Mortgage, 22. The Loan Modification Agreement dated June 9, 2011 (and Defendant does not concede that Wells Fargo was authorized to execute the 2011 Loan Modification Agreement) affirms that Section 22 of the Mortgage is still an obligation of the owner and the servicer of the Mortgage by making the following statement: Exhibit I, Home Affordable Modification Agreement, at 4F Compliance with the Notice of Default section of the mortgage is a condition precedent to acceleration of the loan. See Norwest Bank Minnesota v. Sabloff, 297 A.D.2d 722, 747 N.Y.S.2d 559 (2d Dep t 2002); HSBC vs. Erneste, 22 Misc. 3d 1115(A), 880 N.Y.S.2d 224 (Sup. Ct. Kings Co. 2009) (citing Chan v. Barry, 36 A.D.3d 579, 580, 827 N.Y.S.2d 295 (2d Dep t 2007)). As such, admissible proof of a foreclosing party s compliance must be submitted of 37

15 to demonstrate a default, which is an essential element of the foreclosing party s prima facie case. Id. Since service of a proper Notice of Default on Defendant is a mandatory condition precedent to acceleration of the loan, Plaintiff s failure to demonstrate service of a proper Notice of Default on Defendant may be raised at any time as grounds for dismissal. Matter of Langella v. Front Door Assocs. Inc., 34 Misc. 3d 1212(A), 943 N.Y.S.2d 792 (Sup. Ct. Suffolk Co. Jan ) (emphasis added). Here, Plaintiff failed to provide sufficient admissible proof that a Purported Notice of Default was served on Defendant in the manner required by Section 15 and Section 22 of the Mortgage. Section 15 of the Mortgage requires that all notices to Defendant (as the mortgagor) be personally delivered or sent by first class mail. See Exhibit A, Mortgage at 15. In turn, Section 22 of the Mortgage requires that the default notice be served in the manner set forth in Section 15 of the Mortgage. See Exhibit A, Mortgage at 22. Denying the plaintiff s default judgment motion in HSBC vs. Erneste, Justice Battaglia stated: In her Affidavit, Plaintiff's Vice President states only that "a default letter/notice of Default, dated July 10, 2006 was mailed to Glenda Erneste," and "[t]hat the default letter/notice of Default is kept as part of the computerized records of sent default letters/notice of Default is (sic) proof of its sending." (Affidavit, 9 and 11.) Counsel cites no authority for this proposition, and the Court disagrees. As the authorities cited by the Court demonstrate, appropriate evidentiary support of mailing is not difficult to prepare, and, given that notice is essential to acceleration of the loan as the basis for foreclosure, does not appear to this Court as either burdensome or unnecessary. [144] What is required is "an affidavit of an employee with knowledge of the [lender's] standard office practices or procedures designed to ensure that items were properly addressed and mailed." (See St. Vincent's Hosp. of Richmond v Government Employees Insurance Co., 50 AD3d at 1124.) In the case of a notice required by Section 6 (C) of the Note and Section 22 of the Mortgage, common of 37

16 provisions in residential mortgage transactions, the notice must be given by the Note Holder and Lender, as identified or defined by the respective documents, or by a sender identified to the mortgagor by the Note Holder and Lender as authorized to act for those parties. (See Manufactures and Traders Trust Co. v Korngold, 162 Misc 2d 669; see also QMB Holdings, LLC v Escava Brothers, 11 Misc 3d 1060 [A], 2006 NY Slip Op [U], 14 3 [Sup Ct, Bronx County].) HSBC vs. Erneste, 22 Misc. 3d 1115(A), 880 N.Y.S.2d 22 (Sup. Ct. Kings. Co. 2009) (citing Chan v. Barry, 36 A.D.3d 579, 580, 827 N.Y.S.2d 295 (2nd Dep t 2007)). The Second Department employed similar reasoning in finding the plaintiff s evidence of service of the default notice inadequate in HSBC Mortg. Corp. (USA) v. Gerber, 100 A.D.3d 966, 2012 WL , at 141, 2012 N.Y. Slip Op (2d Dep t Nov. 28, 2012): The plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. The plaintiff failed to show that it complied with a condition precedent contained in the mortgage agreement, which required that it give the defendant notice of default prior to demanding payment of the loan in full (see Norwest Bank Minn. v Sabloff, 297 AD2d 722 [2002]; GE Capital Mtge. Servs. v Mittelman, 238 AD2d 471 [1997]). The unsubstantiated and conclusory statements in the affidavits of the plaintiff's employees that the required notice of default was sent in accordance with the terms of the mortgage, combined with the copy of the notice of default, failed to establish that the required notice was mailed to the defendant by first class mail or actually delivered to her notice address if sent by other means, as required by the mortgage agreement (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also Mid City Constr. Co., Inc. v Sirius Am. Ins. Co., 70 AD3d 789 [2010]). Since the plaintiff failed to meet its prima facie burden, we need not consider the sufficiency of the defendant's papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court erred in granting those branches of the plaintiff's motion which were for summary judgment on the complaint and to appoint a referee to compute of 37

17 The Second Department decided Nationstar Mortg., LLC v. Dimura, 2015 N.Y. Slip Op (2d Dep t, Apr. 29, 2015), on similar grounds: The plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. In support of its motion, the plaintiff did not demonstrate that it complied with the condition precedent contained in the subject mortgage agreement, which required that it provide the defendants Michael Dimura and Jacqueline Dimura (hereinafter together the defendants) with a notice of default prior to demanding payment of the loan in full. The evidence did not establish that the required notice was mailed by first class mail or actually delivered to the notice address if sent by other means, as required by the terms of the mortgage agreement (see Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982, ; HSBC Mtge. Corp. [USA] v Gerber, 100 AD3d 966, ; Norwest Bank Minn. v Sabloff, 297 AD2d 722, 723). The plaintiff's failure to make a prima facie showing required the denial of its motion, regardless of the sufficiency of the defendants' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Similarly, in GMAC Mtge., LLC v. Bell, A.D.3d (2d Dep t 2015), the Court dismissed a case for failure to provide sufficient admissible proof of service of the Purported Notice of Default, reasoning: The mortgagor defendants established, prima facie, that the plaintiff failed to satisfy a condition precedent to the commencement of this action, since it failed to provide them with a notice of default in the payment of their mortgage obligation, as required by the terms of the subject mortgage. In opposition, the plaintiff, relying on the affidavit of its "Authorized Officer," failed to raise a triable issue of fact. We agree with the mortgagor defendants that this affidavit, which asserted that the notice of default was sent in accordance with the terms of the mortgage, was unsubstantiated and conclusory and that, even when considered together with the copy of the notice of default, failed to show that the required notice was in fact mailed by first class mail or actually delivered to the designated address if sent by other means, as required by the subject mortgage (see Wells Fargo Bank, N.A. v Eisler, 118 A.D.3d 982; HSBC Mtge. Corp. [USA] v Gerber, 100 A.D.3d 966) of 37

18 Here, as in Erneste, Plaintiff has submitted the Affidavit of Merit and Amounts Due and Owing of Jack Whitmarsh, Vice President of Loan Documentation of Wells Fargo Bank, NA. Mr. Whitmarsh claims that he personally reviewed the business records maintained by Wells Fargo for the purpose of servicing mortgage loans and claims to have personal knowledge of the Wells Fargo procedures for creating business records, but, he does not claim to have sent the Purported Notice of Default, or to know that Wells Fargo or Plaintiff has a practice for ensuring that items are properly addressed and mailed. See Whitmarsh Aff. Demonstrating his lack of personal knowledge, Mr. Whitmarsh s affidavit lacks details of the purported service of the Purported Notice of Default. Instead, in a carefully worded affidavit, he states only that a notice of default was mailed to the mortgagor(s) at the last known address provided to this institution by the mortgagor. The default stated in said notice was not cured. A copy of the notice of default is attached to this application. See Whitmarsh Aff., 7. By the vague terminology employed by Mr. Whitmarsh, it is obvious that he cannot attest to the mailing of the notice of default. Specifically, his Affidavit fails to confirm that the purported Notice was mailed, the date it was mailed, who mailed it, to whom it was mailed, and to what address it was mailed. See Whitmarsh Aff., 7 The Second Department has drawn on the statutory definition of mailing in C.P.L.R (f) to evaluate proof of mailing: CPLR 2103(f) defines mailing as the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the person s last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state. Lindsay v. Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano LLP, 129 A.D.3d 790, 793, 12 N.Y.S.3d 124 (2d Dep t 2015). In Lindsay, the Second Department of 37

19 denied a motion for summary judgment in part because the movant failed to submit sufficient proof that a notice was mailed; evaluating the movant s evidence, the Court stated: The evidence did not show that the letter dated June 8, 2007, was sent by certified mail return receipt requested, since the certified mail receipt was never filled out and there was no return receipt submitted. With respect to regular mail, "[t]he mere assertion that notice was mailed, supported by someone with no personal knowledge of the mailing," in the absence of proof of office practices to ensure that the item was properly mailed, does not give rise to the presumption of receipt. Id. at 793. In finding the proof of mailing insufficient, the Second Department also relied on the fact that while the defendant's former attorney averred that she "sent" the letter dated June 8, 2007, by regular mail, she did not state that she deposited the letter in a United States Post Office depository. Id. In the action at bar, Plaintiff failed to submit documentary proof of the mailing with the exhibited copy of the Purported Notice of Default or to even describe or attach the business records that served as the basis for his assertions about the Purported Notice of Default. Specifically, as in Lindsay, Mr. Whitmarsh does not state and there is no evidence attached to Plaintiff s Motion showing that the Purported Notice of Default was ever addressed or delivered to the post office or dropped in a mailbox. See Whitmarsh Aff., 7. Interestingly, the Attorney Affirmation is silent as to Plaintiff s purported compliance with the Notice of Default provision of the mortgage. See Ferraro Aff. Further, Plaintiff s cause is not helped by merely attaching a purported copy of the Notice of Default to Plaintiff s Motion; the Appellate Division has repeatedly rejected the argument that a copy of a default notice suffices as proof. See, Gerber, 100 A.D.3d 966; Bell, 128 A.D.3d 772. In any case, the copy of the Purported Notice of Default is attached without any addressed envelope, certificate of mailing or other evidence that the purported copy was ever properly addressed and delivered to a mailbox or the post office. See of 37

20 Exhibit J, Purported Notice of Default. Further, Mr. Whitmarsh does not claim that any mailing receipts exist in the records of Plaintiff. In addition, Defendant denies receiving the Purported Notice of Default. See Fitzgerald Affidavit. Applying the case law, Plaintiff has clearly failed to submit adequate proof that the Purported Notice of Default was served by actual delivery or mailed by first class mail as required by Section 15 and Section 22 of the Mortgage. As compliance with Section 22 of the Mortgage is a mandatory condition precedent to acceleration of the loan, Plaintiff s failure to prove that the Purported Notice of Default complied with the requirements of Section 22 requires dismissal of the action. B. Plaintiff s Purported Notice of Default is Defective in That It Does Not Provide an Explicit Sum to Cure the Default Because the Plaintiff failed to provide an explicit sum that Defendant must pay to avoid a default, the notice of default is defective and dismissal is warranted. In Wells Fargo v. Cullen, the Court granted summary judgment for Defendant and dismissed the action because of the defective notice of default. Index No /08 (Sup. Ct. N.Y. Co. Jun. 30, 2010). In that case, the notice first states that only $5, is due in 30 days, and then states that $16, is due May 13, which is also 30 days from the date of the notice. Id. The court concluded, the notice fails to clearly and unequivocally advise the Borrower of the minimum amount she must pay to correct the default and avoid the acceleration of the loan, and it fails to clearly explain that the Borrower has a full thirty days to pay. Id. Accordingly, Defendant s motion to dismiss was granted. In the instant action, the Purported Notice of Default dated July 1, 2014, states: of 37

21 See Exhibit J, Purported Notice of Default. As noted above, the Purported Notice of Default informs the Defendant, that he must pay $42, by August 5, 2014 in order to cure the default. The letter then goes on to state: you must pay this amount plus any additional monthly payments, late charges and other charges that may be due under applicable law after the date of this notice and on or before August 5, See Exhibit J, Purported Notice of Default (emphasis added). As the above paragraphs make clear, the Purported Notice of Default herein, like the notice in Cullen, fails to clearly and unequivocally advise Defendant of the amount required to cure the default: first it says to pay $42, then it adds that additional payments, late charges and other charges may be due, without specifying when those payments become due or how much the additional charges will be. The references to these additional monies make it impossible for Defendant to determine the total sum required to cure the default from the face of the Purported Notice of Default. See Exhibit J, Purported Notice of Default. In light of the express, straightforward requirements of Section 22, the homeowner should not be required to hire a lawyer to decode the Purported Notice of Default. Thus, since the Purported Notice of Default fails to make clear the amount required to cure the default, the action must be dismissed of 37

22 C. The Notice of Default Was Not Sent by a Proper Party Section 22 of the Mortgage requires that the lender send the default notice. See Exhibit A, Mortgage. The Mortgage defines the Lender as Aames Funding Corporation DBA Aames Home Loan. See Exhibit A, Mortgage, C. The Purported Notice of Default indicates that it was sent by America s Servicing Company. See Exhibit J, Purported Notice of Default. However, it is well established that declarations of an alleged agent are insufficient to prove the fact of agency. Lexow & Jenkins, P.C. v. Hertz Comm. Leasing Corp., 122 A.D.2d 25, 504 N.Y.S.2d 192 (2d Dep t 1986). Plaintiff failed to submit any documentation to show that either the original lender, Aames Funding Corporation DBA Aames Home Loan, the purported current lender (Plaintiff), or even the purported servicer (Wells Fargo), authorized America s Servicing Company to send the Purported Notice of Default. As Justice Lubell wrote in Wells Fargo v. Paneth, Index No. 2593/09 (Sup. Ct. Orange Co. Oct. 14, 2010), Wells Fargo has failed to establish that the notice of default was sent by the then proper party, Fairmont, or a then duly and properly authorized agent. This fatal defect is neither adequately addressed by plaintiff nor cured by plaintiff s assertion through counsel, that [i]t is respectfully submitted that Plaintiff was in possession of the Mortgage and Note at the time the instance [sic] foreclosure action was commenced. In the within action, as in Paneth, Plaintiff failed to establish that America s Servicing Company was the proper party or a properly authorized agent to send the purported notice of default. Since Plaintiff failed to prove it complied with Section 22 of the Mortgage, the court must dismiss the action of 37

23 III. PLAINTIFF FAILED TO PROVE THAT IT SERVED ON DEFENDANT A NOTICE WHICH COMPLIES WITH RPAPL 1304, WARRANTING SUMMARY JUDGMENT FOR DEFENDANT AND THE DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY. Section 1304 of the R.P.A.P.L. requires the foreclosing party in an action involving a home loan to serve a notice on the homeowner at least ninety days before commencing the action. N.Y. R.P.A.P.L (2013). The notice must contain certain statutorily-prescribed information and be printed in at least fourteen point type. N.Y.R.P.A.P.L. 1304(1) (2013). RPAPL 1304(2) provides that the "notice shall be sent by such lender, assignee or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower." (emphasis added). The legislation which created RPAPL 1304 was enacted to afford "additional protections and foreclosure prevention opportunities for homeowners at risk of losing their homes" (Sponsor's Mem, Bill Jacket, L 2008, ch. 472). The statutory purpose of R.P.A.P.L is to provide notice to borrowers at least ninety days before the initiation of a foreclosure proceeding so that attempts can be made at resolution of the default, to reduce the number of foreclosure litigations. Id. The Second Department s decision in Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609 (2d Dep t 2011) clearly establishes that service of the 1304 notice in the required form is a condition precedent to the proper commencement of a foreclosure action. In Aurora Loan Services v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609 (2d Dep t 2011), the Second Department held that RPAPL 1304 requires that a plaintiff commencing a foreclosure action submit an affidavit of service to establish proper service on both borrowers by registered or certified mail and also by first-class mail to their last known address. (emphasis added). The Second Department found the allegation of compliance with RPAPL of 37

24 1304 in the foreclosing plaintiff s complaint insufficient, holding that the plaintiff is required to prove its allegation by tendering sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304, and the failure to make this showing requires denial of the motion, regardless of the opposing papers. Id. (emphasis added). The Court went on to grant the defendant s motion to dismiss, reasoning that because compliance with RPAPL 1304 is a mandatory condition precedent, the plaintiff s failure to comply cannot be disregarded. Id.; see also Wells Fargo Bank v. Eisler, 118 A.D.3d 982, 982 (2d Dep t 2014) and Hudson City Sav. Bank v. DePasquale, 113 A.D.3d 595, 596 (2d Dep t 2014) (dismissing foreclosure complaints for plaintiffs' failure to strictly comply with RPAPL 1304). It is well settled that an affidavit from one who has no personal knowledge of the operative facts is without probative value. Bronson v. Algonquin Lodge Ass n, Inc., 295 A.D.2d 681, 744 N.Y.S.2d 220 (3d Dep t 2002). In HSBC Mortg. Corp. v. Laurent, Index No /10 (Sup. Ct. Nassau Co. Apr. 8, 2012), the Court found that an affidavit from an employee of the plaintiff was insufficient proof of a first class mailing in that it does not specifically state that [the employee] himself mailed the RPAPL 1304 notice to defendant Laurent. In Wells Fargo Bank, N.A. v. Magagna, the Court rejected the contention that an affidavit from an employee of the foreclosing plaintiff who claims to have reviewed the business records of the foreclosing plaintiff was a proper substitute for an affidavit of service of the notices required by R.P.A.P.L. 1304: That being said, however, plaintiff has failed to submit sufficient proof demonstrating that it strictly complied with RPAPL The affidavit of Susana Leal-Salgado, who is plaintiff's Vice President of Loan Documentation, merely indicates that she reviewed the "notice sent to the Borrowers by verified [sic] and first class mail to the last known address of the mortgagor." Neither does the affidavit of Trudyann Yearwood, who is also a Vice President of Loan Documentation, eliminate any issues as to of 37

25 proper service. Though she, like Ms. Leal-Salgado, stated that she is familiar with plaintiff's business records and has examined same, and that, consequently, she was able to certify and affirm that the notice was properly sent, same is insufficient since it does not amount to a proper affidavit of service of the statutorily-required notice (see Flagstar Bank, FSB v Anderson, AD3d, 2015 NY Slip Op 04606, citing Wells Fargo Bank, NA v Burke, 125 AD3d 765 [2015] [plaintiff failed to tender sufficient evidence to eliminate triable issue since it did not submit an affidavit of service]; Deutsche Bank Nat. Trust Co., 102 AD3d at ; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 [2011]). Contrary to Ms. Yearwood's statement in her affidavit, proof of certified mailing was not, in fact, annexed (cf. Emigrant Mtge. Co., Inc. v Persad, 117 AD3d 676 [2014] [1] ). For this reason, plaintiff is not entitled to summary judgment against defendants, dismissal of their second affirmative defense, or an order appointing a referee to compute N.Y. Slip Op (Sup. Ct. Queens Co. June 19, 2015). Equally important, testimony from a witness who relies on business records to testify regarding proof of mailing is only adequate where the witness can confirm that the business has a regular procedure to ensure proper mailing and describe that procedure with the requisite amount of specificity. Nocella v. Fort Dearborn Life Ins. Co., 99 A.D.3d 877, 955 N.Y.S.2d 70 (2d Dep t 2012). In Nocella, the Court found an affidavit from the employee of a company that purportedly mailed notices to plaintiffs inadequate to prove that the notices were mailed, reasoning: Here, in support of their motion for summary judgment dismissing the complaint insofar as asserted against them, Bankers American and Union Security submitted an affidavit from Susan Budelis, wherein she asserted that her employer, Minnesota Life, handled the mailing of the subject cancellation notices on behalf of Bankers American. In addition, Budelis detailed the standard office practice and procedure that Minnesota Life used to ensure that items were properly addressed and mailed. However, Budelis failed to state, based on personal knowledge, that such practice and procedure was in place and used at the time Minnesota Life allegedly mailed, to the plaintiff and his wife, the subject cancellation notice or an alleged notice that the policy issued by Bankers American was to be replaced with a policy issued by Northstar Life Insurance Company (hereinafter Northstar). Rather, in a carefully of 37

26 worded affidavit, Budelis stated, in a vague and conclusory fashion, that "Minnesota Life has utilized the above-described process innumerable times over the years," and that "I have confirmed that these procedures were followed to send the Notice to the Insured Emigrant Customers, including [the plaintiff s wife,] Kathleen Nocella, on April 11, Conspicuously absent from Budelis s affidavit is any indication that she worked at Minnesota Life at the time of the subject mailing. Keeping in mind that "[i]ssue finding, rather than issue determination, is the key to summary judgment", we conclude that Budelis's affidavit was insufficient to eliminate all triable issues of fact in connection with the presumption that the plaintiff and his wife received the notice of cancellation of the Bankers American policy prior to the wife's death. Accordingly, Bankers American and Union Security did not establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the ground that the Bankers American Policy had been cancelled and was no longer in effect at the time of the death of the plaintiff's wife. Consequently, the Supreme Court should have denied their motion regardless of the sufficiency of the plaintiff's opposition papers. Nocella, 99 A.D.3d at (internal citations omitted). As the Court observed in Kearney v. Kearney: The burden is on the (the party obligated to provide notice) to present an affidavit of an employee who personally mailed the verification and/or denial, or, on the other hand, an affidavit of an employee with personal knowledge of the office s mailing practices and procedures. Such individual must describe those practices and procedures in detail, explicitly denoting the manner in which he/she acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that the procedures or practices were adhered to with respect to the processing of that particular claim. 42 Misc. 3d 360, 979 N.Y.S.2d 226 (Sup. Ct. Monroe Co. 2013) (citing Azriliant v. Eagle Chase Assocs., 213 A.D.2d 573 (2d Dep t 1995) (the presumption is unavailable in the absence of sufficient evidence attesting to the mailing of the letter or to the existence of an office practice geared to ensure the proper addressing or mailing of correspondence). Here, Plaintiff failed to submit proper documentary proof from the U.S. Postal Service of mailing of the Purported 1304 Notice by first-class or certified mail or an affidavit of service of 37

27 from an individual with personal knowledge that attests to service of the Purported 1304 Notice by first-class or certified mail. See Plaintiff s Motion; see Exhibit K, Purported 1304 Notice. Obviously, in the action at bar, had the plaintiff possessed a signed certified mailing receipt, it would have exhibited it herein. See Lindsay v. Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano LLP, 129 A.D.3d 790, 793, 12 N.Y.S.3d 124 (2d Dep t 2015) (noting that [t]he evidence did not show that the letter dated June 8, 2007, was sent by certified mail return receipt requested, since the certified mail receipt was never filled out and there was no return receipt submitted ). In addition, Plaintiff submits the affidavit of Jack Whitmarsh, who alleges only that he reviewed the 90 day pre-foreclosure notice sent to borrower(s) by certified mail and also by first-class mail to the last known address of the borrower(s), and, if different, to the residence that is the subject of the Mortgage and a copy of said notice(s) is attached. See Whitmarsh Aff, 5. As the his quoted statement makes clear, Mr. Whitmarsh did not mail the Purported 1304 Notice himself. This does not meet the standard set forth in Laurent, Bronson, and Magagna, because Mr. Whitmarsh lacks personal knowledge of the purported service of the Purported 1304 Notice. Instead, as set forth above, Mr. Whitmarsh bases his assertions on his review of records kept by Wells Fargo. This does not meet the standard detailed supra because Mr. Whitmarsh lacks personal knowledge of the alleged service of the Purported 1304 Notice. In the case at bar, akin to Nocella, Mr. Whitmarsh recited cursory detail of the requirements to serve a 90-day notice. However, he provides no specific details as to the preparation and mailing of the specific 90-day notice letter herein and he does not indicate whether any procedure was in place on the date specified in the letter for the preparation and mailing of 90-day notices. Further, Mr. Whitmarsh does not indicate in the affidavit that he is familiar with Wells Fargo s or Plaintiff s procedures for ensuring that items are properly of 37

28 addressed and mailed; in fact, Mr. Whitmarsh does not even confirm that Wells Fargo or Plaintiff has procedures for ensuring that items are properly addressed and mailed. Further, Mr. Whitmarsh, like the affiant in Nocella, does not confirm that he was working for Wells Fargo or Plaintiff when the Purported 1304 Notice was purportedly mailed. Additionally, Plaintiff failed to establish that America s Servicing Company was a properly authorized agent to send the purported 90 day notice, as required by the statute. Applying the standard in Nocella, Mr. Whitmarsh s assertions are inadequate to establish the reliability of the business records on which he based his testimony as evidence of mailing. Of equal importance, as sworn to in the affidavit of Thomas Fitzgerald, Defendant never received the Purported 1304 Notice. See Fitzgerald Aff., 16. Perhaps most important, as in Lindsay, Mr. Whitmarsh did not allege that the regular mail copies of the Purported 1304 Notice were taken to the post office or dropped in the mailbox and there is no conclusive documentary proof attached showing that it was ever actually taken to the post office or dropped in a mailbox for mailing. See Plaintiff s Motion. On the basis of the foregoing, Plaintiff has failed to submit proof of proper service of the notice that complies with R.P.A.P.L s requirements. Thus, the Affidavit of Mr. Whitmarsh, wrought with unsubstantiated and conclusory statements, clearly does not demonstrate strict compliance with R.P.A.P.L and fails to demonstrate an absence of material issues of fact required for summary judgment in favor of plaintiff. As the evidentiary record unequivocally establishes Plaintiff s failure to satisfy the mandatory notice requirements set forth under RPAPL 1304, the Court should dismiss this action. IV. PLAINTIFF FAILED TO DEMONSTRATE STANDING TO PROCEED WITH THIS ACTION, WARRANTING SUMMARY JUDGMENT FOR DEFENDANT AND THE DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY of 37

29 For Plaintiff to have standing to prosecute this action, Plaintiff must have been granted ownership of both the Mortgage and the Note at the time Plaintiff commenced the action. U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578 (2d Dep t 2009). In CitiMortgage v. Stosel, 89 A.D.3d 887, 934 N.Y.S.2d 182 (2d Dep t 2011) (internal citations omitted) the Second Department noted that [a] plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action and bears the burden of proving standing where the defendant s answer places standing in issue. Id. Here, to prove its claim of standing, Plaintiff submits copies of the Note and the Mortgage, the affidavit of Jack Whitmarsh, Vice President of Loan Documentation of Wells Fargo Bank, N.A., the servicing agent to Plaintiff, an assignment of mortgage dated May 5, 2009 and a corrective assignment of mortgage dated November 25, Mr. Whitmarsh states: U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust, Inc AHL1, Asset-Backed Pass- Through Certificates Series 2007-AHL1 is in possession of the Promissory Note. The Promissory Note was indorsed in blank. I confirm that U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust, Inc AHL1, Asset-Backed Pass-Through Certificates Series 2007-AHL1 had possession of the Promissory Note on February 20, I confirm that U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust, Inc AHL1, Asset-Backed Pass-Through Certificates Series 2007-AHL1 was in possession of the Promissory Note on or before February 20, 2015, the date this action was commenced. See Whitmarsh Aff., 3. The assignment dated May 5, 2009 provides: of 37

30 The corrective assignment of mortgage dated November 25, 2014 provides: of 37

31 Based on the following, Plaintiff failed to demonstrate that Plaintiff had standing to maintain this action when Plaintiff commenced the action. A. Plaintiff Failed to Demonstrate That the Note Was Physically Delivered to Plaintiff Plaintiff has failed to establish standing based on its physical possession of the Note prior to the commencement of the action. To establish standing by physical possession, a plaintiff is required to produce probative evidence clearly setting forth the factual details of a physical of 37