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

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publication.
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SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF RICHMOND 

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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 ADMINISTRA TRIC 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. 

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Present: 

Hon. Desmond A. Green 

Index No. 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 of Motion (002) for Summary Judgment and Appointment of Referee 

By Plaintiff WELLS 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 Plaintiff WELLS 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 order granting summary judgment in its favor pursuant to CPLR §3212, 

and striking the defendants' answer and counterclaims; granting an order of reference 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 

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receive, without prior notice, a copy of the Notice of Sale, Notice of Discontinuance and Notice of Surplus 

Monies, if any; 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, plaintiff WELLS 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 by the 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 of the 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 of Mortgage executed on May 11, 

2016, MERS assigned the mortgage to WELLS FARGO. The Office of the 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 of this interruption 

in income, MICHELLE LOMBARDO fell behind on the mortgage payments. 

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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 her financial situation and mortgage payment assistance options that may help bring 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 of those 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 of the commencement of this action stating that the 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 October 9, 2018, with the mailing memorialized in WELLS FARGO's business records, and ... in 

Track Right. Those records identify the notices by ... certified mail tracking number 9314 7100 11 70 097 4 

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 on the defendants' 

behalf to 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 advised that a request was submitted for a retention review 

and file activation was expected by the following day. 

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With MICHELLE LOMBARDO having failed to cure the mortgage default prior thereto, on 

January 17, 2019, the plaintiff filed the summons and complaint initiating the instant foreclosure action. 

With assistance from Staten Island Legal Services, MICHELLE LOMBARDO and GARY LOMBARDO 

executed pro 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 of 2019. However, GARY LOMBARDO, the assuming borrower, died on October 9, 

2019, before the permanent modification 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. 

MICHELLE LOMBARDO was unable to accept the September 2022 offer and did not have sufficient funds 

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 plaintiff was granted leave to file and serve a Supplemental 

Summons, Amended Complaint, and Amended Notice of Pendency. MICHELLE LOMBARDO and 

JUDITH LOMBARDO filed prose answers to the amended foreclosure complaint with counterclaims. 

PROCEDURAL HISTORY 

Plaintiff commenced this action via the filing of a summons and complaint on January 17, 2019 

(NYSCEF Doc. No. 1). On March 13, 2019, defendants MICHELLE LOMBARDO and GARY 

LOMBARDO joined issue by filing answers with affirmative defenses and counterclaims (NYSCEF Doc. 

Nos. 30and31, respectively). 

By notice of motion (Motion #001) dated March 8, 2023, the plaintiff sought leave to amend the 

caption by adding JUDITH LOMBARDO, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE 

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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 of Pendency, 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 plaintiff served 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 a prose answer with counterclaims (NYSCEF Doc. No. 60). Similarly, on July 28, 

2023, JUDITH LOMBARDO served a prose 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 their time to do so has expired. 

DISCUSSION 

Now, by motion dated October 27, 2023, WELLS FARGO BANK, N.A. moves for an order 

granting summary judgment 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 of the defendants' respective answers as a 

limited notice of appearance entitling defense counsel to receive, without prior notice, a copy of the Notice 

of Sale, Notice of Discontinuance, and Notice of Surplus Monies, if any; 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 relief as 

this Court deems just 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 of the 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 prima facie showing of entitlement to summary judgment by providing business records that 

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establish the date of default, and strictly comply with the 90-day pre-foreclosure requirement under RP APL 

§ 1304, which is a condition precedent to commencing a foreclosure action. The defendants further aver 

that there are triable issues of fact regarding their asserted affirmative defenses. 

WELLS FARGO replied to the defendants' opposition maintaining that its prima facie right to 

foreclosure has been established along with its compliance with the "less stringent 'workable rule' 

standard" governing RP APL § 1304. The plaintiff additionally avers that there fail to exist any questions 

of triable facts regarding the affirmative defenses asserted. 

Summary judgment is a drastic remedy that deprives litigants of their day in court, and it "should 

only be employed when there is no doubt as to the absence of triable 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 of the court on a motion for summary judgment is not to resolve issues of fact or 

to determine matters of credibility, 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 summary judgment, evidence must be viewed in the light most 

favorable to the nonmoving party. Pearson v. Dix McBride, LLC, 63 AD3d 895 (2d Dept 2009). 

The proponent of a summary judgment motion is required to tender sufficient evidence to 

demonstrate the absence of any material issues of fact, and the failure to do so requires denial of the motion 

regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). 

Once the proponent of a motion for summary judgment makes a prima facie showing of entitlement to 

judgment as a matter oflaw, the burden shifts to the party opposing the motion to produce evidentiary proof 

in admissible form sufficient to establish the existence of material issues of fact which require a trial. Young 

Hee Kim v. Handlesman, 850 NYS2d 633 (2d Dept 200*); McDonald v. Mauss, 38 AD 3d 727 (2d Dept 

2007). 

As recited by both the plaintiff and defendants, to establish its prima facie entitlement to summary 

judgment in a mortgage foreclosure action, a plaintiff must produce the mortgage, the unpaid note, and 

evidence of the mortgagor's default (see Wells Fargo Bank, N.A. v. Heiney, 168 AD3d 1126 [2d Dept 

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2019]; Flatbush Two, LLC v. 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 

of the facts, or (3) other evidence in admissible form (see Bank of NY Mellon v. Gordon, 171 AD3d 197 

[2d Dept 2019]). 

Even before demonstrating the existence of the mortgage, unpaid note, and the mortgagor's default, 

however, the mortgagee, as movant for summary judgment, must establish, primafacie, strict compliance 

with RP APL§ 1304 notice to the borrower or borrowers as a condition precedent to the commencement of 

the foreclosure action. While here, the plaintiff has demonstrated, and the defendants have not refuted, the 

executed mortgage, unpaid note, and the mortgagors' default, this court finds that the movant has failed to 

sufficiently establish, prima facie, that it strictly complied with statutory mortgage default notice 

requirements prior to commencing the instant foreclosure action and for entitlement to summary judgment 

as a matter of law. 

RP APL § 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 or mortgage loan servicer shall give notice to the borrower." Strict compliance with RP APL§ 1304 

notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action. 

Here, as in Deutsche Bank National Trust Company v. Roman Hennessy et al., 218 AD3d 740 (2d Dept 

2023 ), the defendants are both borrowers for purposes of RP APL § 1304 and thus, were each entitled to 

RPAPL §1304 notice. Although both defendants were entitled to RPAPL §1304 notice, the plaintiff failed 

to establish that it sent a 90-day notice to each defendant in separate envelopes, as required by the statute. 

In fact, via the PENNO affidavit and copies of the letters, proof of filing statements, and Track Right screens 

annexed as Exhibit "F" (NYSCEF Doc. No. 84 ), the plaintiff illustrates and does not refute that single 90-

day notices were addressed and sent to MICHELLE 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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Rather, the plaintiff erroneously relies on Bank of Am., NA. v. Kessler, 39 NY3d 317 (2023), 

misinterpreting its holding to stand for the proposition that RP APL § 1304 is governed by a "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 of multiple notices contained within a single envelope, rather than the contents of a single envelope 

providing notice to multiple borrowers. In fact, the holding in Kessler permits the inclusion of additional 

notices or information that may help borrowers avoid foreclosure and is not false or misleading within the 

same envelope. It does not, however, extend to permitting notification to multiple borrowers collectively 

in a single envelope. 

Where there are two or more borrowers, the plaintiff must separately mail the 90-day notice to each 

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

Appellate Division held that "[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 of separately 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 notice jointly addressed to two or 

more borrowers and mailed in a single envelope to service in lieu of a 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 and mailed the statutorily prescribed notices to MICHELLE LOMBARDO and 

GARY LOMBARDO jointly rather than individually and separately, this court finds that the requirements 

of RP APL § 1304 were violated and the plaintiff has thus failed to meet its primafacie burden in establishing 

its entitlement to summary judgment and an order of reference. 

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Upon due consideration, the Court finds any remaining contentions of the parties to be moot and/or 

unavailing. 

Accordingly, it is hereby, 

ORDERED, that plaintiff WELLS FARGO's motion for an order granting summary judgment in 

its favor pursuant to CPLR §3212, and striking the defendants' answer and counterclaims; granting an order 

of reference 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 of the Notice of Sale, 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 relief as this court deems just 

and proper is denied. 

This constitutes the Decision and Order of the Court. 

Dated: July 15, 2024 

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ENTER 

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

HON. DESMOND GREEN 

JSC 

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