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Pre-Foreclosure Notices: RPAPL 1304 the “90 Day Notice”

New York requires that home loan borrowers receive notice of a potential foreclosure proceedings prior to commencement. This requirement is found in RPAPL 1304 which details the specific notice that lenders must serve at least 90 days before commencement of a foreclosure action. Strict compliance with RPAPL 1304 is a condition precedent to the commencement of a foreclosure action and a lender’s failure to comply with RPAPL 1304 will result in the dismissal of a foreclosure complaint.

In order to comply with RPAPL 1304, a lender needs to prove both the contents of the notice and the service of the notice.

Service

RPAPL1304 (2) requires that the notice by sent to the borrower by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage. Plaintiff must establish service through “proof of the actual mailings, such as affidavits or mailing or domestic return receipts with attendant signatures, or proof of standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.” JP Morgan Chase Bank, N.A. v. Williams, 94 N.Y.S. 3d 882 (2d Dept 2019).

On September 29, 2021, the Appellate Division, Second Department, held that a 90-Day notice mailed jointly to two or more borrowers, is insufficient to satisfy the requirements of RPAPL 1304. Since RPAPL 1304 requires “notice to the borrower” and not borrowers, strict reading of the statute requires notice to each borrower individually. Wells Fargo Bank, N.A. v. Yapkowitz, 59 Misc. 3d 1227

A foreclosure action will be dismissed if the lender cannot prove proper service by both first-class mail and registered or certified mail individually to each borrower. 

Contents

The contents of the 90-Day Notice must strictly comply with RPAPL 1304. This includes the notice being in 14 point font, containing the proper wording, and attaching a list of at least five housing counselors. A notice is not compliance with RPAPL 1304 if it fails to include any of the requirements. Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95 (2d Dept. 2011).On December 15, 2021, the Appellate Division, Second Department, continued to strictly interpret the separate envelope rule in Bank of America, N.A. v. Kessler. In Kessler, the Court found “that inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2).” Therefore, the inclusion of any notices regarding the rights of a borrower in bankruptcy or in military service violates the separate envelope rule.

Have Questions about RPAPL 1304?

Clair Gjertsen & Weathers PLLC are proven foreclosure defense attorneys and we continue to monitor this ever-changing foreclosure landscape in New York for our clients. For additional questions regarding RPAPL 1304 and the most current foreclosure laws, we invite you to contact Clair Gjertsen & Weathers PLLC by calling 914-472-6202. We look forward to hearing from you.

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