### Wells Fargo Bank, N.A. v Lombardo 2024 NY Slip Op 32398(U) July 15, 2024 Supreme Court, Richmond County Docket Number: Index No. 135022/2019 Judge: Desmond A. Green Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

1 of 9 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND 

### ------------------------------------------------------------------------------X WELLS FARGO BANK, N.A., Plaintiffs, against

- MICHELLE LOMBARDO A/KIA MICHELLE L. LOMBARDO, KlNA'OLE HAW All KAI SOLAR, LLC, CITY OF NEW YORK PARKING VIOLATIONS BUREAU, JUDITH LOMBARDO, INDIVIDUALLY AND AS ADMINISTRATRIC OF THE ESTATE OF GARY LOMBARDO A/KIA GARY P. LOMBARDO, JOHN DOE (REFUSED NAME) AS JOHN DOE #1, JOHN DOE (REFUSED NAME) AS JOHN DOE #2, JOHN DOE (REFUSED NAME) AS JOHN DOE #3, JOHN DOE (REFUSED NAME) AS JOHN DOE #4, JOHN DOE (REFUSED NAME) AS JOHN DOE #5, Defendants. 

### ------------------------------------------------------------------------------X Present: Hon. Desmond A. Green IndexNo. 135022/2019
DECISION AND ORDER

Motion Seq. No. 002

The Court considered the following papers associated with motion sequence 002, submitted on April 4, 2024:
Notice ofMotion (002) for Summary Judgment and Appointment ofReferee By PlaintiffWELLS FARGO BANK, N.A., with Supporting Papers and Exhibits NYSCEF Document#: (Dated October 27, 2023)
........................................................................................77-126 Affirmation in Opposition By Defendants MICHELLE LOMBARDO and JUDITH LOMBARDO, with Supporting Papers and Exhibits (Dated February 20, 2024)
...................................................................................... 128-138 Affirmation in Reply By PlaintiffWELLS FARGO BANK, N.A. (Dated March 5, 2024)
................................................................................................139
ln this residential foreclosure action, the plaintiff, WELLS FARGO BANK, N.A., (hereinafter "WELLS FARGO"), moves for an ordergranting summaryjudgmentin its favor pursuantto CPLR §3212, and striking the defendants' answer and counterclaims; granting an order ofreference and appointing a referee to determine the amounts due and owing, and whether the subject premises can be sold in parcels; permitting treatment ofdefendants' answer as a limited Notice ofAppearance entitling defense counsel to Page 1 of9



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## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

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### receive, without prior notice, a copy ofthe Notice ofSale, Notice ofDiscontinuance and Notice ofSurplus Monies, ifany; determining that all non-appearing and non-answering defendants be deemed in default, and said defaults to be fixed and determined; amending the caption to rename the DOE defendants; and granting such other and further relief as this court deems just and proper. Defendants MICHELLE LOMBARDO and WDITH LOMBARDO oppose WELLS FARGO's motion, and WELLS FARGO replies. Upon the foregoing papers, plaintiffWELLS FARGO's motion is denied in its entirety. The court's decision is outlined below. 

### FACTUAL BACKGROUND On May 21, 2015, MICHELLE LOMBARDO signed a note for a loan in the amount of $493,843.00, secured bythe real property known as 2180 S. Railroad Avenue, Staten Island, N.Y. 10306, which she purchased together with her late father, GARY LOMBARDO, as tenants in common. MICHELLE LOMBARDO and GARY LOMBARDO executed and delivered to Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for US Mortgage Corporation, a mortgage wherein they promised to repay the debt evidenced by the Note, with interest, and all renewals, extensions and modifications ofthe Note to the lender. The mortgage was signed on May 21, 2015, and recorded by the Richmond County Clerk on June 22, 2015. By Corporate Assignment ofMortgage executed on May 11, 2016, MERS assigned the mortgage to WELLS FARGO. The Office ofthe Richmond County Clerk recorded the assignment on May 27, 2016. The subject property, a two-family home, was purchased as a primary residence with MICHELLE LOMBARDO occupying the downstairs unit with her three children, and her retired parents (GARY and JUDITH LOMBARDO) living in the upstairs unit. While pregnant with her third child, MICHELLE LOMBARDO began to suffer from back pain that rendered it difficult for her to continue working. Consequently, she was on disability and maternity leave from her former employment from November 2016 to July 2017, and was approved to receive disability benefits in 2018. As a result ofthis interruption in income, MICHELLE LOMBARDO fell behind on the mortgage payments. Page 2 

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## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

3 of 9 By letter dated April 18, 2016, addressed to MICHELLE LOMBARDO at the subject premises, WELLS FARGO advised her that her mortgage loan was in default and an in-person meeting would be arranged to discuss herfinancial situation and mortgage paymentassistance options thatmayhelpbring her account current. On February 28, 2018, a WELLS FARGO vendor visited the subject property to meet with the defendant and deliver a flyer, which encounter MICHELLE LOMBARDO "does not recall." Between March 2, 2018 and December 11, 2018, WELLS FARGO communicated with the defendant regarding her loss mitigation options, decisions on loan modification applications, and subsequent appeals ofthose decisions. By letter dated October 5, 2018, addressed to MICHELLE LOMBARDO and GARY LOMBARDO at 2180 S Railroad Ave, Staten Island, NY 10306-3714, the subject property address, a 90- day notice was sent in advance ofthe commencementofthis action statingthatthe loan was in default, and included the amount due to cure the total delinquency. As recited in the affidavit of RICK PENNO ("PENNO affidavit"), Vice President Loan Documentation for plaintiff, (NYSCEF Doc. No. 78), "[s]uch notices were mailed pursuant to the names and addresses on such notices, to MICHELLE LOMBARDO and GARY LOMBARDO at 2180 S Railroad Ave, Staten Island, NY 10306-2714, the subject property address on October9, 2018,withthemailingmemorialized in WELLS FARGO'sbusinessrecords, and
...in Track Right. Those records identify the notices by
...certified mail tracking number 9314 7100 1170 0974 4007 41 and
...first-class mail tracking number 2337624898, which [are] printed on the notices themselves
...." Furthermore, on December 8, 2018, a loss mitigation application was submitted onthe defendants' behalfto plaintiff's counsel via email, and the following week, MICHELLE LOMBARDO was notified that she was ineligible for loss mitigation review. Thereafter, on December 17, 2018, Staten Island Legal Services contacted a WELLS FARGO special escalation unit customer service representative on the defendants' behalf, and an escalation file was opened. On January 16, 2019, WELLS FARGO advisedthat arequest was submitted for a retentionreview and file activation was expected bythe following day. Page 3 of9



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## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

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### With MICHELLE LOMBARDO having failed to cure the mortgage default prior thereto, on January 17, 2019, the plaintifffiled the summons and complaint initiating the instant foreclosure action. With assistance from Staten Island Legal Services, MICHELLE LOMBARDO and GARY LOMBARDO executedpro se 

### answers to the complaint. In the meantime, the loss mitigation process continued. WELLS FARGO offered MICHELLE LOMBARDO and GARY LOMBARDO a trial payment plan based upon an assumption-modification that was to begin in March 2019. Payments were made through the summer of2019. However, GARY LOMBARDO, the assuming borrower, died on October 9, 2019, before the permanentmodification papers could be executed. In 2021, the plaintiff offered MICHELLE LOMBARDO a streamlined Covid-19 Recovery Modification which she declined. She then applied for a Covid-19 Recovery Modification in April 2022 and was offered a trial payment plan in June 2022 that she found unaffordable. At MICHELLE LOMBARDO's request, the plaintiff evaluated her for a Covid Recovery Modification with a 40-year amortization schedule, which came with a higher interest trial plan than that previously offered. MICHELLELOMBARDO was unableto acceptthe September 2022 offerand didnothave sufficientfunds to make the back payments for the June 2022 offer. The matter was released from the conference part in November 2022. By Order signed April 19, 2023, the plaintiffwas granted leave to file and serve a Supplemental Summons, Amended Complaint, and Amended Notice of Pendency. MICHELLE LOMBARDO and JUDITH LOMBARDO filedprose 

### answers to the amended foreclosure complaintwith counterclaims. PROCEDURAL HISTORY 

### Plaintiffcommenced this action via the filing ofa summons and complaint on January 17, 2019 (NYSCEF Doc. No. 1). On March 13, 2019, defendants MICHELLE LOMBARDO and GARY LOMBARDOjoined issue by filing answers with affirmative defenses and counterclaims (NYSCEF Doc. Nos. 30and31,respectively). By notice ofmotion (Motion #001) dated March 8, 2023, the plaintiffsought leave to amend the caption by adding JUDITH LOMBARDO, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE Page 4 

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## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

5 of 9 ESTATE OF GARY LOMBARDO A/KIA GARY P. LOMBARDO as party Defendants, leave to remove party Defendants GARY LOMBARDO and FLEET NATIONAL BANK, and leave to serve and file an Amended Notice ofPendency, Supplemental Summons, and Amended Complaint (NYSCEF Doc No. 50). The plaintiffs motion was granted by order dated April 19, 2023 (NYSCEF Doc. No. 52). The plaintiffserved a supplemental summons and amended complaint (NYSCEF Doc. Nos. 55 and 56) on both MICHELLE LOMBARDO and JUDITH LOMBARDO, and on May 15, 2023, MICHELLE LOMBARDO served aprose answer with counterclaims (NYSCEF Doc. No. 60). Similarly, on July 28, 2023, JUDITH LOMBARDO served aprose answer with counterclaims (NYSCEF Doc. No. 74). The plaintiff served a reply to MICHELLE LOMBARDO's counterclaims on June 1, 2023, and to JUDITH LOMBARDO's counterclaims on July 31, 2023 (NYSCEF Doc. Nos. 71 and 75). The remaining defendants did not answer or appear, and theirtime to do so has expired. DISCUSSION Now, by motion dated October 27, 2023, WELLS FARGO BANK, N.A. moves for an order granting summaryjudgment in its favor, pursuant to CPLR §3212; an Order of Reference ordering the appointment of a referee to determine the amounts due and owing and whether the premises being foreclosed can be sold in parcels; an order permitting treatment ofthe defendants' respective answers as a limited notice ofappearance entitling defense counsel to receive, without prior notice, a copy ofthe Notice ofSale, Notice ofDiscontinuance, and Notice ofSurplus Monies, ifany; an order determining that all nonappearing and non-answering defendants are in default, with defaults to be fixed and determined; an order amending the caption to rename the DOE defendants; and an order granting such other and further reliefas this Court deemsjust and proper. It is essentially the movant's position that there fails to exist a question of fact that the loan is currently in default; the plaintiff complied with RPAPL §1304 and the notice provisions ofthe Mortgage, Real Estate Settlement Procedures Act ("RESPA") and the Fair Housing Act ("FHA"); the amount due on the loan; and the defendants' premature demand for attorney's fees. Defendants' opposition to WELLS FARGO's motion is grounded in both the plaintiffs failure to make a primafacie showing of entitlement to summary judgment by providing business records that Page 5 of9



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## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

6 of 9 establishthe date ofdefault, and strictlycomplywiththe 90-daypre-foreclosure requirementunderRPAPL §1304, which is a condition precedent to commencing a foreclosure action. The defendants further aver that there are triable issues offact regarding their asserted affirmative defenses. WELLS FARGO replied to the defendants' opposition maintaining that its primafacie right to foreclosure has been established along with its compliance with the "less stringent 'workable rule' standard" governing RPAPL §1304. The plaintiffadditionally avers that there fail to exist any questions oftriable facts regarding the affirmative defenses asserted. Summaryjudgment is a drastic remedy that deprives litigants oftheir day in court, and it "should only be employed when there is no doubt as to the absence oftriable issues." Andre v. Pomeroy,35 NY2d 361 (1974); Bonaventura v. Galpin, 119 AD3d 625 (2d Dept 2014); Stukas v. Streiter, 83 AD3d 18 (2d Dept 2011). The function ofthe court on a motion for summaryjudgment is notto resolve issues offact or to determine matters ofcredibility, but merely determine whether such issues exist. Guadalupe v. New York City Tr. Auth., 91 AD3d 716 (2d Dept 2012); Kolivas v. Kirchoff, 14 AD3d 493 (2d Dept 2005). Importantly, in determining a motion for summaryjudgment, evidence must be viewed in the light most favorable to the nonmovingparty. Pearson v. DixMcBride, LLC, 63 AD3d 895 (2d Dept 2009). The proponent of a summary judgment motion is required to tender sufficient evidence to demonstrate the absence ofanymaterial issues offact, andthe failure to do sorequires denial ofthe motion regardless ofthe sufficiency ofthe opposing papers. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Once the proponent ofa motion for summaryjudgment makes aprimafacie showing ofentitlement to judgmentas a matteroflaw,theburden shiftstothe partyopposingthe motionto produce evidentiaryproof in admissible form sufficientto establishtheexistence ofmaterial issues offact whichrequire atrial. Young Hee Kim v. Handlesman, 850 NYS2d 633 (2d Dept 200*); McDonald v. Mauss, 38 AD 3d 727 (2d Dept 2007). As recited by boththe plaintiffand defendants, to establish itsprima facie entitlementto summary judgment in a mortgage foreclosure action, a plaintiffmust produce the mortgage, the unpaid note, and evidence ofthe mortgagor's default (see Wells Fargo Bank, N.A. v. Heiney, 168 AD3d 1126 [2d Dept Page 6 of9



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## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

7 of 9 2019]; 

### Flatbush Two, LLCv. Morales, 190 AD3d 826 [2d Dept 2021]). A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge ofthe facts, or (3) other evidence in admissible form (see 

### Bank of NYMellon v. Gordon, 171 AD3d 197 [2d Dept 2019]). Even before demonstratingtheexistenceofthe mortgage, unpaid note, and themortgagor's default, however, the mortgagee, as movant for summaryjudgment, must establish,

### primafacie, strict compliance with RPAPL§1304 notice to the borrower or borrowers as a condition precedent to the commencement of the foreclosure action. While here, the plaintiffhas demonstrated, and the defendants have not refuted, the executed mortgage, unpaid note, and the mortgagors' default, this court finds thatthe movant has failed to sufficiently establish, 

### prima facie, that it strictly complied with statutory mortgage default notice requirements prior to commencingthe instant foreclosure action and for entitlement to summaryjudgment
as a matter oflaw. RPAPL §1304 (1) provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower,
...including mortgage foreclosure, such lender, assignee ormortgage loan servicer shall give noticeto the borrower." Strictcompliancewith RPAPL§1304 notice to the borrower orborrowers is a condition precedentto the commencement ofa foreclosure action. Here, as in 

### Deutsche BankNational Trust Company v. Roman Hennessy et al., 218 AD3d 740 (2d Dept 2023), the defendants are both borrowers for purposes ofRPAPL §1304 and thus, were each entitled to RPAPL §1304 notice. Although both defendants were entitled to RPAPL §1304 notice, the plaintifffailed to establish that it sent a 90-day notice to each defendant in separate envelopes, as required by the statute. In fact, viathe PENNO affidavit and copies ofthe letters, proofoffiling statements, and TrackRight screens annexed as Exhibit "F" (NYSCEF Doc. No. 84), the plaintiffillustrates and does not refute that single 90- day notices were addressed and senttoMICHELLE LOMBARDO and GARY LOMBARDO collectively, at the subject premises, in a single envelope identified by one certified mail tracking number (9314 7100 1170 0974 4007), and one first-class mail tracking number (2337624898).
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## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

8 of 9 Rather, the plaintiff erroneously relies on 

### Bank of Am., NA. v. Kessler, 39 NY3d 317 (2023), misinterpreting its holdingto standfor the propositionthatRPAPL §1304 is governedbya "workable rule" standard that is more akin to a substantial compliance standard rather than a "strict compliance" standard insofar as notice requirements in foreclosure actions involving multiple borrowers. 

### Kessler addressed the issue ofmultiple notices contained within a single envelope, rather than the contents ofa single envelope providing notice to multiple borrowers. In fact, the holding in 

### Kessler permits the inclusion ofadditional notices or information that may help borrowers avoid foreclosure and is not false ormisleading within the
same envelope. It does not, however, extend to permitting notification to multiple borrowers collectively in a single envelope. Wherethere aretwo ormoreborrowers,theplaintiffmust separatelymail the 90-daynoticeto each borrower (see 

### Wells Fargo Bank, NA. v. Yapkowitz, 199 AD3d 126 (2d Dept 2021). In 

### Yapkowitz, the Appellate Division heldthat "[s]ince the legislature imposed strict mailing requirements aimed at ensuring notice and documenting the delivery of the 90-day notice, it would be difficult to imagine why the legislature would not also require the simple measure ofseparately addressing a 90-day notice to each of the borrowers." The Court further held that "the obligation to send all required notices 'in a separate envelope from any other mailing or notice' cannot be satisfied by including the required notice for each borrower in the same envelope (RPAPL 1304 (2). To permit a single noticejointly addressed to two or more borrowers and mailed in a single envelope to service in lieu ofa separately mailed notice to each borrower would transform the requisite standard of compliance from 'strict compliance' to 'substantial compliance"' (id. at 136). As delineated in 

### Yapkowitz, the plaintiff is required to mail a 90-day notice addressed to each borrower in separate envelopes as a condition precedent to commencing the foreclosure action. Since WELLS FARGO addressed andmailedthe statutorilyprescribed noticestoMICHELLELOMBARDO and GARY LOMBARDOjointly ratherthan individually and separately, this court finds thatthe requirements ofRPAPL §1304wereviolatedandtheplaintiffhasthus failed tomeetits

### primafacieburden in establishing its entitlementto summaryjudgment and an order ofreference. Page 8 of9



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## FILED: RICHMOND COUNTY CLERK 07/16/2024 09:03 AM INDEX NO. 135022/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 07/15/2024

9 of 9 Upon due consideration,the Courtfinds anyremainingcontentions ofthe partiesto be moot and/or unavailing. Accordingly, it is hereby, ORDERED, that plaintiffWELLS FARGO's motion for an order granting summaryjudgment in its favor pursuantto CPLR §3212, and strikingthe defendants' answer and counterclaims; granting an order ofreference and appointing a referee to determine the amounts due and owing, and whether the subject premises can be sold in parcels; permitting treatment of defendants' answer as a limited Notice of Appearance entitling defense counsel to receive, without prior notice, a copy ofthe Notice ofSale, Notice of Discontinuance and Notice of Surplus Monies, if any; determining that all non-appearing and nonanswering defendants be deemed in default, and said defaults to be fixed and determined; amending the caption to rename the DOE defendants; and granting such other and further reliefas this court deemsjust and proper is denied. This constitutes the Decision and Order ofthe Court.

Dated: July 15, 2024

Page 9 of9 ENTER

Hon. Desmond A. Green, J.S.C. 

## HON. DESMOND GREEN JSC

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