18-3287 CIT Bank N.A. v. Schiffman

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________

August Term, 2019

(Submitted: January 13, 2020 Decided: May 28, 2021)

Docket No. 18-3287 _______________

CIT BANK N.A.,

Plaintiff-Counter-Defendant-Appellee,

– v. –

PAMELA SCHIFFMAN, JERRY SCHIFFMAN,

Defendants-Counter-Claimants-Appellants,

JP MORGAN CHASE BANK, N.A., NEW YORK CITY PARKING VIOLATIONS BUREAU,

Defendants. _______________ B e f o r e:

KATZMANN and LYNCH, Circuit Judges, and KAPLAN, District Judge. * ______________

Appeal from an order of the United States District Court for the Eastern District of New York (Irizarry, J.) adopting the Report and Recommendation of the magistrate judge (Levy, M.J.) and granting summary judgment in favor of plaintiff-counter-defendant-appellee CIT Bank N.A. in a foreclosure action against defendants-counter-claimants-appellants Pamela and Jerry Schiffman. On appeal, the Schiffmans argue that CIT failed to prove compliance with the pre-foreclosure notice requirements of New York Real Property Actions and Proceedings Law (“RPAPL”) § 1304 and the pre-foreclosure filing requirements of RPAPL § 1306. We sought and received guidance from the New York Court of Appeals on the issues of state law that govern the Schiffmans’ arguments. With the benefit of that invaluable guidance, we now find that CIT has adequately proven compliance with RPAPL §§ 1304 and 1306. Accordingly, we affirm the district court’s grant of CIT’s motion for summary judgment. _______________

Stephen J. Vargas, Gross Polowy, LLC, Westbury, NY, for Plaintiff- Counter-Defendant-Appellee.

Samuel Katz, Brooklyn, NY, for Defendants-Counter-Claimants- Appellants. _______________

*Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation.

2 KATZMANN, Circuit Judge:

CIT Bank N.A. brought this action against Pamela and Jerry Schiffman to

foreclose on a property in Brooklyn, New York. The district court (Irizarry, J.)

granted summary judgment to CIT, and the Schiffmans appealed, arguing that CIT

had failed to prove compliance with two provisions of the New York Real Property

Actions and Proceedings Law (“RPAPL”).

In an earlier opinion, we determined that the Schiffmans’ arguments turned

on undecided questions of state law. CIT Bank N.A. v. Schiffman,

(2d

Cir. 2020). We accordingly certified two questions to the New York Court of

Appeals, pursuant to 22 N.Y.C.R.R. § 500.27(a) and Second Circuit Local Rule

27.2(a). See 948 F.3d at 538. The New York Court of Appeals granted our request

for certification, see

(N.Y. 2020), and provided helpful answers to

our questions, see CIT Bank N.A. v. Schiffman, No. 11,

(N.Y. Mar.

30, 2021). With the benefit of the New York Court of Appeals’ invaluable guidance,

which we are bound to follow, we now find that CIT has adequately proven

compliance with the requirements of the RPAPL. We accordingly affirm the

district court’s grant of summary judgment to CIT.

3 BACKGROUND

This appeal arises from a foreclosure action brought by plaintiff-counter-

defendant-appellee CIT Bank N.A. against defendants-counter-claimants-

appellants Pamela and Jerry Schiffman. 1 In 2008, Pamela Schiffman took out a loan

and executed a note with IndyMac Bank, F.S.B., securing the note by a mortgage

given by her and her husband, Jerry, on their home in Brooklyn. The mortgage

was subsequently assigned to OneWest Bank, F.S.B., which later became known

as CIT Bank N.A. The Schiffmans ceased making mortgage payments on and after

December 1, 2014, and CIT initiated a foreclosure action on October 17, 2016 in the

United States District Court for the Eastern District of New York. On February 28,

2018, CIT moved for summary judgment, and the district court (Irizarry, J.)

granted the motion after adopting the Report and Recommendation of the

magistrate judge (Levy, M.J.).

1 The facts of this dispute are fully set forth in our earlier opinion and are repeated here only as necessary. See generally 948 F.3d at 532–36. Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.

4 The Schiffmans challenged the district court’s decision on appeal, arguing,

first, that CIT failed to prove compliance with the pre-foreclosure notice

requirements of RPAPL § 1304 and, second, that CIT failed to prove compliance

with the pre-foreclosure filing requirements of RPAPL § 1306. As to RPAPL § 1304,

the Schiffmans argued that CIT did not adequately establish that it had served

them with the notice that § 1304 requires a lender to provide to a home loan

borrower at least ninety days before commencing a foreclosure action. See

(1)–(2). “Proper service of [an] RPAPL 1304 notice on

the borrower or borrowers is a condition precedent to the commencement of a

foreclosure action, and the plaintiff has the burden of establishing satisfaction of

this condition.” Deutsche Bank Nat’l Tr. Co. v. Spanos,

, 202 (N.Y.

App. Div. 2d Dep’t 2013). A lender may create a rebuttable presumption that it

complied with § 1304 by submitting “proof of a standard office mailing procedure

designed to ensure that items are properly addressed and mailed, sworn to by

someone with personal knowledge of the procedure.” Citibank, N.A. v. Conti-

5 Scheurer,

, 277 (N.Y. App. Div. 2d Dep’t 2019). 2 But the purported

recipient of a notice may rebut the presumption that the notice was mailed (as the

New York Court of Appeals has held, albeit in a different context) by both denying

receipt and “showing that [the] routine office practice was not followed or was so

careless that it would be unreasonable to assume that the notice was mailed.”

Nassau Ins. Co. v. Murray,

(N.Y. 1978).

In support of its motion for summary judgment, CIT submitted an affidavit

from one of its employees, Assistant Secretary Rachel Hook. Hook’s affidavit

explains that CIT employees follow a standard office procedure “used to create,

mail and store data regarding the 90 day pre-foreclosure notice” required by

RPAPL § 1304, and her affidavit certifies that she is personally familiar with this

procedure. Joint App’x 18. As relevant to this appeal, Hook stated that CIT’s

standard practice is to create the § 1304 notice “upon default” by the borrower.

Joint App’x 19. She also affirmed that CIT employees followed this procedure in

2 A foreclosure plaintiff could instead establish compliance with § 1304 through “proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures,” id., but CIT has not provided such proof here.

6 creating and mailing the required § 1304 notices to the Schiffmans. But the

Schiffmans denied receipt of any such notices. And they further countered that

CIT’s own evidence demonstrated that it had not followed its standard practice in

this instance: Along with the Hook affidavit, CIT submitted copies of § 1304

notices that were addressed to each of the Schiffmans and marked as having been

sent via first-class and certified mail; but these notices were dated November 18,

2015, indicating that they were created not “upon default,” but, rather, nearly one

year after the Schiffmans first missed a mortgage payment in December 2014.

In granting summary judgment to CIT, the district court held that the Hook

affidavit was sufficient under state law to create a presumption that the § 1304

notices had been mailed. See 948 F.3d at 534. But we “hesitate[d] to affirm” that

conclusion in light of the possibility that the Schiffmans’ denial of receipt of the

notices, combined with their showing that CIT had deviated from its standard

procedure for creating the notices, might be enough to rebut the presumption of

mailing. Id. We further observed that there were no decisions of the New York

Court of Appeals establishing the quantum of evidence necessary to rebut the

presumption of mailing that is established by a showing of a standard procedure.

7 Specifically, we found no controlling law on the question of “whether the

presumption of receipt is rebutted by any showing of a deviation from the

assertedly routine office procedures for preparing and mailing § 1304 notices, or

whether instead the presumption is rebutted only by a showing of deviations

directly related to the mailing process, rather than to other aspects of the asserted

routine.” Id. at 535. For guidance on this dispositive question, we certified the

following question to the New York Court of Appeals: “Where a foreclosure plaintiff

seeks to establish compliance with RPAPL § 1304 through proof of a standard office

mailing procedure, and the defendant both denies receipt and seeks to rebut the

presumption of receipt by showing that the mailing procedure was not followed, what

showing must the defendant make to render inadequate the plaintiff’s proof of compliance

with § 1304?” Id.

As to RPAPL § 1306, the Schiffmans argued that CIT’s pre‐foreclosure filing

with the Superintendent of Financial Services was deficient because it did not

include information about Jerry Schiffman. In addition to the § 1304 notice

requirement, RPAPL § 1306 further requires that a foreclosure plaintiff file certain

information, within three business days of mailing a § 1304 notice, with a state

8 regulator, the Superintendent of Financial Services.

(1). Among other information, the § 1306 filing must include “the name,

address, last known telephone number of the borrower, and the amount claimed

as due and owing on the mortgage.” Id. § 1306(2).

The Schiffmans contend that § 1306 requires the lender’s filing to provide

the specified information about all borrowers on a multi-borrower loan. Here,

there is no dispute that CIT timely submitted a § 1306 filing with the

Superintendent, and that this filing included the required information about

Pamela Schiffman. But it is also uncontested that CIT’s filing neither listed Jerry

Schiffman as a borrower nor provided any information about him. The Schiffmans

accordingly maintain that CIT failed to comply with § 1306.

In our earlier opinion, we found that there were no decisions from the New

York Court of Appeals or the Appellate Division that resolved this question,

though we noted that there were colorable arguments on both sides. See 948 F.3d

at 536–37. We therefore certified the following question to the New York Court of

Appeals: “Where there are multiple borrowers on a single loan, does RPAPL § 1306

9 require that a lender’s filing include information about all borrowers, or does § 1306

require only that a lender’s filing include information about one borrower?” Id. at 537.

DISCUSSION

The New York Court of Appeals rendered a decision on the two certified

questions on March 30, 2021. See CIT Bank N.A. v. Schiffman, No. 11,

(N.Y. Mar. 30, 2021). Following its guidance, we now resolve the

remaining questions in this appeal and affirm the district court’s grant of summary

judgment to CIT. 3

As to the § 1304 question, the New York Court of Appeals held that the

presumption of mailing, once established by proof of a routine office practice, may

be rebutted by a denial of receipt plus “proof of a material deviation from an aspect

of the office procedure that would call into doubt whether the notice was properly

mailed, impacting the likelihood of delivery to the intended recipient.” Id. at *3

(emphasis added). That is, “the crux of the inquiry is whether the evidence of a

3 In applying the legal guidance of the New York Court of Appeals to the facts of this case, we review the district court’s grant of summary judgment de novo, “construing the evidence in the light most favorable to the non‐moving party.” Anderson v. Recore,

(2d Cir. 2006).

10 defect casts doubt on the reliability of a key aspect of the process such that the

inference that the notice was properly prepared and mailed is significantly

undermined. Minor deviations of little consequence are insufficient.”

The

deviation necessary to rebut the presumption of mailing of a § 1304 notice will

vary from context to context and “will depend, in part, on the nature of the

practices detailed in the affidavit.” Id. Courts should strive to “appl[y] a workable

rule that balances the practical considerations underpinning the presumption

against the need to ensure the reliability of a routine office practice with respect to

the creation and mailing of notices.” Id. But in any event, “a single deviation from

any aspect of the routine office procedure” will not automatically rebut the

presumption of mailing. Id.

These general principles resolve the dispute before us. The Schiffmans have

asserted that CIT deviated from its standard procedure relating to § 1304 notices

in that CIT created the Schiffmans’ notices on November 18, 2015, rather than

“upon [their] default” on December 1, 2014. But that deviation is immaterial to the

question of whether “the notice was properly prepared and mailed.” Id. In other

words, just because the notice was created much later than it would have been in

11 the ordinary course, there is no reason for us to infer from that fact that the notice

was not properly mailed at that later date. Indeed, as the New York Court of

Appeals wrote, “residential notes and mortgages are negotiable instruments that

often change hands at various points during their duration, which may impact the

timing of the creation and mailing of RPAPL 1304 notices.” Id. We therefore hold

that the Schiffmans have not rebutted the presumption that CIT mailed, and that

they received, the required § 1304 notices. 4

The New York Court of Appeals’ guidance also resolves the § 1306 issue.

“Although the statute does not specify whether information must be supplied [to

the Superintendent] concerning each party when there are multiple individuals or

entities on a single loan,” the New York Court of Appeals interpreted the statute

to provide that “RPAPL 1306 is satisfied as long as one borrower is listed.” See CIT,

4 Concurring in the New York Court of Appeals’ opinion, Judge Fahey wrote separately to provide further instruction on the aspects of evidence necessary to establish the presumption of mailing in the first place. See CIT,

, at *5–6. Having considered his helpful guidance, we adhere to our earlier conclusion that the Hook affidavit provides an adequate “description of the . . . office procedures relating to the delivery of mail to the post office.” Id. at *6; see 948 F.3d at 534.

12

, at *4. Because there is no dispute that CIT timely submitted a

§ 1306 filing with all the required information about Pamela Schiffman, it has

complied with the statute. That CIT did not submit a filing with respect to Jerry

Schiffman is irrelevant, as CIT was not required to do so. 5

With the benefit of the well-reasoned opinion of the New York Court of

Appeals, we therefore hold that there is no genuine dispute that CIT has complied

with the pre-foreclosure requirements of RPAPL §§ 1304 and 1306. CIT is therefore

entitled to summary judgment in its favor.

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

5We therefore need not reach the question of whether Jerry Schiffman is a “borrower” within the meaning of RPAPL § 1306. As we noted in our earlier opinion, there might have been a question on this point, as only Pamela Schiffman executed the note with IndyMac Bank, F.S.B., but both Jerry and Pamela Schiffman executed, and are listed as borrowers in, a Consolidation, Extension, and Modification Agreement dated March 26, 2008 and a Loan Modification Agreement dated October 30, 2014. See 948 F.3d at 537 n.4.

13