Wells Fargo Bank, N.A. v. Merino
Docket Index No. 3654/19|Appeal No. 6483|Case No. 2025-03853|
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Reversed
- Citation
- 2026 NY Slip Op 02616
- Docket numbers
- Index No3654/19Appeal No6483Case No2025-03853
Appeal from an order granting plaintiff's motion for summary judgment in a foreclosure action
Summary
The Appellate Division, First Department reversed Supreme Court Bronx County's grant of summary judgment to Wells Fargo in a foreclosure-related case and denied Wells Fargo's motion. The court held Wells Fargo failed to prove strict compliance with RPAPL 1304's notice requirements because its affiant did not establish knowledge of the third-party vendor's mailing procedures or integration of the vendor's records into the bank's business records. The court also rejected Wells Fargo's claim that the loan was not a covered primary-residence loan, finding plaintiff did not prove the property was never the borrower's primary residence.
Issues Decided
- Whether plaintiff proved strict compliance with RPAPL 1304's notice and mailing requirements to support summary judgment in a foreclosure action
- Whether the affidavit offered by plaintiff established familiarity with the third-party vendor's mailing procedures and incorporation of vendor records into plaintiff's business records
- Whether the loan at issue qualified as a 'home loan' subject to RPAPL 1304 because the property had been used as the borrower's primary residence
Court's Reasoning
Under RPAPL 1304 a plaintiff seeking summary judgment in a foreclosure must demonstrate strict compliance with statutory notice and mailing procedures. The bank's proof relied on an affidavit from a loan-documentation vice president but that affidavit did not show she knew the mailing practices of Covius Services, LLC, the vendor that actually mailed the notices, nor that Covius's records were part of the bank's business records. Because those showings were absent, tracking numbers alone did not establish proper mailing. The bank also failed to prove the loan was never a primary-residence loan.
Authorities Cited
- U.S. Bank N.A. v Moran191 AD3d 451 (1st Dept 2021)
- U.S. Bank N.A. v Nahum232 AD3d 715 (2d Dept 2024)
- U.S. Bank N.A. v Maher219 AD3d 1372 (2d Dept 2023)
Parties
- Respondent
- Wells Fargo Bank, N.A.
- Appellant
- Reyes Merino
- Defendant
- New York City Environmental Control Board
- Judge
- Naita A. Semaj
- Judge
- Webber, J.P.
- Judge
- Mendez
- Judge
- Rodriguez
- Judge
- O'Neill Levy
- Judge
- Michael
Key Dates
- Decision date
- 2026-04-28
- Lower court order entered
- 2025-04-30
What You Should Do Next
- 1
For plaintiff (Wells Fargo): gather additional evidence
Obtain affidavits from personnel at the mailing vendor and documentation showing the vendor's procedures and how those records are kept in and relied upon by the bank, then consider renewing the summary judgment motion.
- 2
For defendant (Merino): review and prepare opposition
Continue to oppose summary judgment and, if settlement is of interest, evaluate options now that the appellate court found the bank's proof insufficient.
- 3
For both parties: proceed in trial court
Return to the Supreme Court for further proceedings consistent with the appellate decision, which may include discovery, renewed motions, or trial.
Frequently Asked Questions
- What did the court decide?
- The appellate court reversed the trial court's grant of summary judgment to Wells Fargo because the bank did not adequately prove it complied with statutory notice and mailing rules required for this kind of foreclosure.
- Who is affected by this decision?
- Wells Fargo (the lender) and Reyes Merino (the borrower) are directly affected; the reversal means the lender's summary judgment claim fails and the case returns to the trial level for further proceedings.
- Why did Wells Fargo lose on appeal?
- Because the bank's affidavit did not show the affiant was familiar with the third-party vendor's mailing procedures or that the vendor's records were part of the bank's business records, so the required proof of proper mailing under RPAPL 1304 was lacking.
- Can Wells Fargo try again?
- Yes. The bank can attempt to cure the evidentiary defects by submitting admissible proof showing strict compliance with RPAPL 1304, such as an affidavit from someone who can attest to the vendor's mailing procedures and incorporation of vendor records.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Wells Fargo Bank, N.A. v Merino - 2026 NY Slip Op 02616 Wells Fargo Bank, N.A. v Merino 2026 NY Slip Op 02616 April 28, 2026 Appellate Division, First Department Wells Fargo Bank, N.A., Respondent, v Reyes Merino, Appellant, New York City Environmental Control Board, et al., Defendants. Decided and Entered: April 28, 2026 Index No. 3654/19|Appeal No. 6483|Case No. 2025-03853| Before: Webber, J.P., Mendez, Rodriguez, O'Neill Levy, Michael, JJ. Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant. Reed Smith LLP, New York (Andrew B. Messite of counsel), for respondent. Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about April 30, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment against defendant Reyes Merino, unanimously reversed, on the law, without costs, and plaintiff's motion denied. Plaintiff failed to demonstrate that it had strictly complied with RPAPL 1304 ( see U.S. Bank N.A. v Moran, 191 AD3d 451, 452 [1st Dept 2021]; U.S. Bank N.A. v Nahum , 232 AD3d 715, 717 [2d Dept 2024]). Plaintiff submitted an affidavit from one of its vice presidents of loan documentation, who averred that she had personal knowledge of plaintiff's business records and that according to the records she reviewed, the 90-day notice, as well as the notice of default, were served via certified and first-class mail at the property secured by the mortgage. However, the affiant did not attest that she was familiar with the standard office mailing procedures of Covius Services, LLC, the third-party vendor that sent the RPAPL 1303 and 1304 notices on behalf of plaintiff. The affidavit therefore did not establish proof of a standard office mailing procedure designed to ensure that items were properly addressed and mailed ( see Nahum , 232 AD3d at 717; CitiMortgage, Inc. v Moran , 167 AD3d 461 [1st Dept 2018]). The affidavit also did not address the nature of plaintiff's relationship with Covius, nor did it address whether Covius's records were incorporated into plaintiff's own records or routinely relied upon in plaintiff's business ( Nahum , 232 AD3d at 717). Thus, under the circumstances presented, the tracking numbers on the copies of the 90-day notices did not by themselves suffice to establish proper mailing under RPAPL 1304 ( id. ). We reject plaintiff's argument that this action does not involve a "home loan" as defined under RPAPL 1304. Plaintiff failed to provide evidence establishing that defendant never used the property as a primary residence. In any event, even if plaintiff established that defendant was not living at the property when this action was commenced, plaintiff still would not have been relieved of the obligation to serve the RPAPL 1304 notice, as the record, including defendant's affidavit, shows that defendant had previously occupied the property as a primary residence ( see U.S. Bank N.A. v Maher , 219 AD3d 1372, 1375 [2d Dept 2023]). We have considered the remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 28, 2026