Wilmington Sav. Fund Socy., FSB v Ramos

Supreme Court, Suffolk County

Decided on May 27, 2026

Index No. 206403/2022

C. Stephen Hackeling, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendant for an Order/Judgment, pursuant to CPLR 2221 (e), granting Defendant leave to renew his RPAPL 1304 defense, and upon granting such leave, dismissing Plaintiff's complaint pursuant to Plaintiff's demonstrable noncompliance with the statutory mandates set forth under RPAPL § 1304 [NYSCEF Doc. Nos. 93-97]; Plaintiff's Memorandum of Law in Opposition [NSYCEF Doc. No. 102]; Defendant's Reply [NYSCEF Doc. No. 103];and both parties, by their counsel, having appeared at oral argument on May 27, 2026; and after due deliberation; it is

ORDERED that defendant's motion (seq. 003) for an "Order/Judgment, pursuant to CPLR 2221 (e), granting Defendant leave to renew his RPAPL 1304 defense, and upon granting such leave, dismissing Plaintiff's complaint pursuant to Plaintiff's demonstrable noncompliance [*2]with the statutory mandates set forth under RPAPL § 1304" is granted, and upon renewal, defendant's motion to dismiss the case is denied.

DECISION

Wilmington Savings Fund Society, FSB, not in its Individual Capacity But Solely as Certificate Trustee of Bosco Credit II Trust Series 2010-1 (the "Plaintiff") commenced this residential foreclosure action by filing a summons and complaint on November 21, 2022 regarding real property located at 94 East 12th Street, Huntington Station, New York 11746.

Antonio Ramos a/k/a Antonio Ramos Martinez (the "Defendant"), by his counsel, filed an Answer with Counterclaims asserting general denials, five affirmative defenses, and two counterclaims [NYSCEF Doc. No. 26]. Defendant raised as his first affirmative defense that plaintiff failed to strictly comply with the notice and mailing mandates set forth in RPAPL § 1304.

By Notice of Motion dated August 6, 2024, plaintiff moved for summary judgment, order of reference and related relief [NYSCEF Doc. Nos. 33-45]. In its Memorandum of Law in Support of Summary Judgment, plaintiff provided documentary evidence as well as statutory and decisional law in support of its compliance with RPAPL § 1304. Importantly, defendant interposed opposition to plaintiff's summary judgment motion [NYSCEF Doc. No. 46] having raised as his sole argument that plaintiff failed to prove defendant's default. This Court entered an Order granting summary judgment [NYSCEF Doc. No. 51] and defendant appealed. According to defendant's notice of appeal, he alleged that the Court improperly granted summary judgment because plaintiff's limited power of attorney "failed to include the supporting and limited agreements referred to therein." [NYSCEF Doc. No.54]. RPAPL 1304 was neither argued in opposition to summary judgment nor in defendant's notice of appeal.^FN1

Thereafter, plaintiff moved for judgment of foreclosure and sale [NYSCEF Doc. Nos. 60-83] and again, defendant filed opposition thereto [NYSCEF Doc. No. 85]. He again argued that the limited power of attorney failed to prove an agency relationship between plaintiff and its servicer Franklin Credit Management Corporation; defendant did not argue that plaintiff failed to satisfy the RPAPL § 1304 statutory condition precedent. At the conclusion of oral argument on March 11, 2026, the Court granted plaintiff's motion for judgment of foreclosure and sale and on that same day, defendant filed a Notice of Motion under CPLR § 2221(e) granting defendant leave to "renew his RPAPL 1304 defense." Indeed, for the first time after filing his answer, defendant argues that dismissal is appropriate because plaintiff failed to comply with the statutory mandates set forth under RPAPL § 1304. Defendant's argument fails because it is barred by law of the case doctrine.

DECISION

"Proper service of the RPAPL § 1304 notice on the borrower is a condition precedent to the commencement of a foreclosure action, and plaintiff has the burden of establishing satisfaction of this condition" Wells Fargo Bank, N.A. v Morales, 178 AD3d 881, 882 (2d Dept. 2019). "A defense based on noncompliance with RPAPL § 1304 may be raised at any time during the action" Id. However, where the defense is never raised by the borrower, plaintiff is [*3]not required to disprove the defense Flagstar, FSB v Jambelli, 140 AD3d 829 (2d Dept. 2016).

The Second Department's recent decision in HSBC Bank USA, N.A. v Coxall, 239 AD3d 714 (2d Dept. 2025) is instructive and on point. Defendant, in a residential foreclosure action, interposed an answer asserting, among other things, an affirmative defense that plaintiff failed to comply with RPAPL 1304. Defendant failed to oppose summary judgment but in opposition to judgment of foreclosure and sale, moved to vacate the summary judgment order and to oppose the motion for judgment of foreclosure and sale. The Court denied that portion of his motion and said:

"defendant effectively raised the issue of noncompliance with RPAPL 1304 in his answer, the plaintiff presented evidence of its compliance with the statute on its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, and, in granting that motion, the Supreme Court decided the issue in the plaintiff's favor (see Wells Fargo Bank, N.A. v. Morales, 178 AD3d at 882) Therefore, pursuant to the doctrine of law of the case, the court was precluded from reconsidering the issue on the defendant's cross-motion, among other things, to vacate the summary judgment order."

See HSBC Bank v Coxall, 239 AD3d at 716-717. See also JPMorgan Chase Bank, N.A. v Bracco, 200 AD3d 765 (2d Dept. 2021); Deutsche Bank National Trust Company v Kevin Spencer, et al., 247 AD3d 1146 (2d Dept. 2026); U.S. Bank Trust, N.A. v Longo, 227 AD3d 1122 (2d Dept. 2024).

Here, defendant raised the issue of noncompliance with RPAPL § 1304 in his answer, the plaintiff presented evidence of its compliance with the statute on its motion for summary judgment, and, in granting that motion, this Court decided the issue in plaintiff's favor. Moreover, defendant opposed summary judgment but failed to raise RPAPL § 1304. Therefore, pursuant to the doctrine of law of the case (see RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740 (2d Dept. 2011)), this Court is precluded from reconsidering the issue. Moreover, since defendant opposed plaintiff's motion for summary judgment and judgment of foreclosure and sale, defendant did not raise the issue of plaintiff's noncompliance with RPAPL § 1304 in opposition to either the motion for summary judgment or the motion to confirm the referee's report, the Court is not bound to raise the issue sua sponte (see Wells Fargo Bank, N.A. v Morales, 178 AD3d 881, 882 (2d Dept. 2019)).

Under the circumstances, the doctrine of law of the case requires that we grant defendant's motion to renew "his RPAPL 1304 defense"^FN2 and upon granting such leave, the Court affirms its prior orders and declines to dismiss the case. The law of the case doctrine "is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" Martin v City of Cohoes, 37 NY2d 162, 165 (1975).

Finally, in Reply [NYSCEF Doc. No. 103] defendant argues that the defense of 1304 may be raised at any time prior to the entry of judgment of foreclosure and sale. However, the [*4]cases relied on by defendant are easily distinguished. In Deutsche Bank Natl. Trust Co v Starr, 173 AD3d 836, defendants raised 1304 in opposition to plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale. Similarly, in U.S. Bank Trust, N.A. v Chiramannil, 205 AD3d 966 defendant raised 1304 in opposition to plaintiff's motion for summary judgment (the defendant properly raised failure to comply with RPAPL 1304 in opposition to the summary judgment motion, even though not asserted in her answer.") Id. at 967. Here, defendant failed to raise 1304 in opposition to summary judgment or judgment of foreclosure and sale.

Defendant's reliance on U.S. Bank N.A. v Valencia, 219 AD3d 890 (2d Dept. 2023) is also misplaced. While defendant argues that defendant in Valencia "moved to renew [his] RPAPL 1304 defense" — in reality — defendant opposed plaintiff's motion for judgment of foreclosure and sale and cross-moved for leave to renew their opposition to those branches of the plaintiff's prior motion which were for summary judgment. As stated above, defendant in this case failed to raise RPAPL 1304 in opposition to either summary judgment or judgment of foreclosure and sale. "Defendant's failure to raise and/or assert all of his pleaded affirmative defenses in opposition to plaintiff's motion for summary judgment warrants the dismissal of the abandoned affirmative defenses" (see Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539 (1975)). Here, defendant abandoned his RPAPL 1304 defense.

Dated: May 27, 2026

HON. C. STEPHEN HACKELING, J.S.C.