Appeals court upholds MetLife foreclosure ruling on notice and standing

Two arguments drove the appeal. The first was notice. New York requires a lender to send a borrower a pre-foreclosure notice, called an RPAPL 1304 notice, before filing. Sending it is a precondition, and the lender must prove it did. Proof can take a few forms: return receipts, evidence of a standard office routine for addressing and mailing the notices, or a sworn statement from someone with direct knowledge that the mailing went out. 

The lender took the last route. It submitted an affidavit from an authorized representative of its loan servicer, who also acted as its attorney-in-fact, with attached business records. The court found that enough to show compliance on its face. The homeowners offered nothing to send the question to trial. 

The second argument was standing – the lender’s right to foreclose, which depends on holding the note. The lender showed it possessed the note before suing by attaching a copy, endorsed in blank, to the summons and complaint at the outset. Again, the homeowners raised no genuine dispute. Their last argument, the court said, had no merit. 

The panel affirmed the trial court’s order and added costs against the homeowners. 

For lenders and servicers, the decision follows a settled path through summary judgment. A servicer representative’s affidavit describing the mailing, backed by business records, together with a note endorsed in blank and attached at filing, can satisfy both the notice and standing requirements at the prima facie stage – the point where the lender has shown enough to shift the burden to the borrower. Bare denials from a borrower will not create a triable dispute.