State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 14, 2016 520683 

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GREEN PLANET SERVICING, LLC,

Respondent,

v MEMORANDUM AND ORDER

DAWN M. MARTIN,

Appellant.

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Calendar Date: May 26, 2016

Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

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David B. Gilbert, Middletown, for appellant.

Peter T. Roach and Associates, PC, Syosset (Michael C.

Manniello of counsel), for respondent.

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Aarons, J.

Appeals (1) from an order of the Supreme Court (Elliott

III, J.), entered February 5, 2015 in Greene County, which, among

other things, granted plaintiff's motion for summary judgment,

and (2) from the judgment entered thereon.

Selene Finance commenced this mortgage foreclosure action

alleging that defendant defaulted on a note secured by a

mortgage. After joinder of issue, Selene Finance, moved for,

among other things, summary judgment striking defendant's answer

and appointing a referee to compute the total amount owed and to

substitute plaintiff, the current holder of the note and

mortgage, in its place in this action. In January 2015, Supreme

Court granted the motion. Plaintiff thereafter moved for a

judgment and foreclosure of sale of defendant's property. In May

2015, a judgment was entered in favor of plaintiff. Defendant
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appeals from both the order granting summary judgment and the

judgment entered thereon, contending that Supreme Court erred in

granting the summary judgment motion. 

A plaintiff generally satisfies its summary judgment burden

in a mortgage foreclosure action by submitting a copy of the

mortgage, the unpaid note and evidence of the defendant's default

(see Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 738

[2015]; PHH Mtge. Corp. v Davis, 111 AD3d 1110, 1111 [2013], lv

dismissed 23 NY3d 940 [2014]). Where a defendant alleges that

the plaintiff failed to comply with a condition precedent set

forth in the loan documents to foreclose on a mortgage, as part

of its prima facie showing, the plaintiff must establish

compliance with such condition precedent (see Onewest Bank, FSB v

Smith, 135 AD3d 1063, 1065 [2016]; RBS Citizens, N.A. v Galperin,

135 AD3d 735, 736 [2016]).

Defendant argues, and we agree, that plaintiff failed to

show that it complied with certain federal regulations applicable

to her mortgage that was insured by the Federal Housing

Administration, a defense that defendant validly asserted in her

answer. As relevant here, it was incumbent upon plaintiff, prior

to commencing this action, to have a face-to-face meeting with

defendant, or, at the very least, make reasonable efforts to

arrange such a meeting before three full monthly installments due

on the mortgage became unpaid (see 24 CFR 203.604 [b]; 203.606

[a]). Plaintiff's submissions are wholly devoid of any proof,

explanation or argument showing that it met these federal

regulations or that it was exempt from complying with them (see

24 CFR 203.604 [c]; 203.606 [b]). We therefore conclude that

plaintiff failed to satisfy its burden on its motion and that the

summary judgment motion should have been denied regardless of the

sufficiency of defendant's opposition papers (see Onewest Bank,

FSB v Smith, 135 AD3d at 1065).

Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.
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ORDERED that the order and judgment are reversed, on the

law, with costs, and motion denied.

ENTER:

Robert D. Mayberger

Clerk of the Court