This case comes before the Court on the motion by Plaintiff seeking a default judgment against the non-appearing defendants, summary judgment against defendant Vale and an order of reference. Defendant Vale has opposed and has brought a cross-motion seeking summary judgment dismissing the Complaint. Plaintiff has opposed the cross-motion.

Plaintiff's motion for default judgment against defendant Board of Directors of The Ermine Lair Neighborhood Association is facially straightforward. Plaintiff submits copies of the Summons and Complaint and an affidavit of service upon the Board via the Secretary of State, as well as documentation of its claim for foreclosure of its mortgage lien. Plaintiff's counsel states in her affirmation that the Board has failed to appear or plead in response.

As for Plaintiff's summary judgment motion, the basic standard to be applied is well [*2]established. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party or parties to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving parties (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]).

Plaintiff's motion for summary judgment against defendant Emily Vale turns on a point raised by this defendant in opposition. The gravamen of Defendant's opposition and her cross-motion are the same. Defendant asserts the defense in her Answer, and argues on this motion, that Plaintiff has failed to carry its burden of proof on its motion for summary judgment because it has failed to show compliance with all applicable HUD regulations prior to bringing this foreclosure action. Defendant first points to 24 CFR §203.602, which states that a written notice of default must be sent, either using a form supplied by the Secretary (of HUD) or in a format approved by the Secretary. Defendant also points to 24 CFR §203.604, which requires a reasonable effort to conduct a face-to-face interview with a defaulting borrower before three full monthly installments are unpaid. Defendant argues that she received no written notice of default in compliance with §203.62 and that Plaintiff made no attempt to set up a meeting in compliance with §203.604.

In response, Plaintiff argues that it sent Defendant a written notice of default that was in "substantial compliance" with the regulation. Plaintiff also asserts that a face-to-face meeting was not required because of an exception to that requirement when the plaintiff does not maintain an office within 200 miles of the mortgaged property (24 CFR §206.604[c]). Plaintiff points out that it has no offices located within 200 miles of Defendant's home. Plaintiff further argues that the HUD servicing regulations are not considered a condition precedent to foreclosure, and that Defendant's allegations do not provide a valid defense to this foreclosure.

In reply, Defendant compares the form for written notice of default promulgated by HUD with the copy of the notice annexed to Plaintiff's motion papers. While much of the verbiage is similar, two sentences are omitted from Plaintiff's notice — those that provide a due date for payment of amounts past due and warn that failure to make payment risks foreclosure and a deficiency judgment. Defendant also points out that while Plaintiff asserts substantial compliance with the official form, there is no assertion that the notice of default was approved by the Secretary.

Defendant also points out that Plaintiff was not the mortgagee at the time when Defendant is alleged to have defaulted in payment on the mortgage loan. An effort to hold a face-to-face meeting is required by §203.604 before three full monthly payments go unpaid. According to Plaintiff's motion papers, Defendant defaulted beginning with the payment due on October 1, 2018, and Plaintiff received possession of the note from its predecessor, Residential Finance Corporation, on December 7, 2018. Plaintiff thus was not the mortgagee until after Defendant's third unmade payment was due. Defendant provides addresses for two offices of Residential Finance that are within 200 miles of the mortgaged property, making the exception asserted by Plaintiff inapplicable.

Contrary to the argument advanced by Plaintiff, compliance with applicable FHA regulations — and in particular, the face-to-face meeting requirement — has been held to be a condition precedent to foreclosure, compliance with which must be shown by a plaintiff as part of its initial burden of proof on its motion for summary [*3]judgment (Green Planet Servicing, LLC v. Martin, 141 AD3d 892 [3d Dept 2016]). In contrast, Plaintiff points to no authority to support "substantial compliance" with the notice requirement and essentially admits a lack of compliance with the face-to-face meeting requirement by asserting an exception that is not applicable. Plaintiff has thus failed to carry its burden of proof, which merits denial of its motion for summary judgment.

Plaintiff's application for default judgment against the defendant Board of Directors of The Ermine Lair Neighborhood Association presents a different situation. A plaintiff seeking default judgment is required to submit sufficient proof to allow a court to determine that a viable cause of action exists, a burden that can be met through submission of a properly verified pleading (Woodson v. Mendon Leasing Corp., 100 NY2d 62 [2003]). This is not the same standard that is applied to a motion for summary judgment. Indeed, the performance of a condition precedent is not a matter that is required to be pled (CPLR 3015[a]). Plaintiff here has offered proof of the basic requisites of a mortgage foreclosure action: the mortgage, unpaid note, and evidence of the mortgagor's default (see e.g. Bayview Loan Servicing, LLC v. Freyer, 192 AD3d 1421, 1422 [3d Dept 2021]). Having also provided proof of the Board's default in pleading, Plaintiff is entitled to default judgment against this defendant.

Turning to defendant Vale's cross-motion, the failure of a condition precedent can support an award of summary judgment to a defendant who pleads that defense (see e.g. Tougher Industries, Inc. v. Dormitory Auth. of the State of New York, 130 AD3d 1393 [3d Dept 2015]). As stated above, this defendant has asserted failure of a condition precedent as a defense in her Answer. Nonetheless, the movant must satisfy the summary judgment burden of proof. In this context, it is worth noting that after finding a failure of this same condition precedent, the Green Planet opinion stops short of awarding summary judgment to the defendant in that case, something the Third Department had the power to do under CPLR 5522.

On the record here, the issue of Defendant's receipt of mailings from Plaintiff is determinative of this motion. In addition to the requirement of a written notice of default, the requirement of a "reasonable effort" to schedule a face-to-face meeting is defined at 24 CFR §203.604(d) as consisting, at a minimum, of a letter sent by certified mail. Defendant states in her affidavit that she did not receive either letter. While the receipt of mailings from is often litigated in some contexts, case authority that is directly applicable to the situation at bar is scant.

The Court finds the opinion from Citibank, N.A. v. Conti-Scheurer (172 AD3d 17 [2d Dept 2019]) to be instructive. Analyzing a denial of receipt of an RPAPL §1304 notice, which has also been held to be a condition precedent to foreclosure, the Conti-Scheurer opinion examines the distinctions between "mere denial" of receipt where a presumption of delivery has been established and denial of receipt when such a presumption has not been shown. The procedural posture in the Conti-Scheurer case is similar to the case at bar, in that the plaintiff's summary judgment motion was defeated for failure to show that the condition precedent of mailing a §1304 notice had been performed. Also, the defendant in Conti-Scheurer cross-moved for summary judgment based on her denial of receipt. The opinion notes, however, that the defendant did not offer any proof beyond her denial; e.g., that she still lived at the subject property, that she had received other mail at that address, or that she had never been contacted by the U.S. Post Office about mail for which she was required to sign. Even without an established presumption of mailing, the Conti-Scheurer court held that the defendant's proof did not affirmatively establish that the condition precedent of §1304 had failed and thus could not support summary judgment in her favor.

Here, Defendant's affidavit includes her statement that she has been living continuously at the mortgaged property since the inception of the loan, but she offers no further proof of the type described in Conti-Scheurer. Instead, Defendant focuses on Plaintiff's failure to provide proof that it sent the notice of default or made an attempt to schedule a face-to-face meeting. A party moving for summary judgment cannot rely on gaps in their opponent's proof but must instead affirmatively show their entitlement to judgment (see e.g. Conti-Scheurer, 172 AD3d at 24; Schillaci v. Sarris, 122 AD3d 1085 [3d Dept 2014]). While Defendant here has amply resisted Plaintiff's motion by showing gaps in Plaintiff's proof, viewing her cross-motion in a light most favorable to Plaintiff as the nonmoving party, Defendant has only denied receipt of letters and has not carried her burden of proof to show that Plaintiff and/or its predecessor, Residential Finance Corporation, failed to send a notice of default and failed to make a reasonable effort to schedule a face-to-face meeting with her. Those remain factual questions requiring further proof.

The parties' remaining contentions have been considered, but do not alter the outcome here. Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by Plaintiff seeking summary judgment against defendant Emily Vale is denied; and it is further

ORDERED, that the cross-motion by defendant Emily Vale seeking summary judgment dismissing the Complaint in this action is denied; and it is further

ORDERED, that the motion by Plaintiff seeking a default judgment against defendant Board of Directors of The Ermine Lair Neighborhood Association is granted.

Notice of Motion; Affirmation of Tracy Starasoler, Esq., with annexed exhibits; Notice of Cross-Motion; Affirmation of Elizabeth Fairbanks-Fletcher, Esq., with annexed exhibits; Affirmation in Opposition of Jeremy Kaufman, Esq., with annexed exhibits; Reply Affirmation of Elizabeth Fairbanks-Fletcher, Esq., with annexed exhibits.