“867-5309” (The “Jenny” Principle and The Importance of Phone Numbers)
Print Article- Posted on: Mar 14 2025
The title for today’s article refers to one of the most played songs by DJs at college parties, and VJs on the fledgling MTV Network, in the very early eighties. My hope in writing today’s article is that all readers of this BLOG in their 50s and early 60s are inspired to call the number 867-5309 and leave voice mail messages about RPAPL 1304, the subject of today’s article.
This BLOG has frequently written about mortgage foreclosure actions, in general, and RPAPL 1304 specifically.[1] By way of brief background as discussed in prior articles, RPAPL 1304 requires that at least ninety days before commencing legal action against a borrower with respect to a “home loan” (as defined in the relevant statutes), a lender must, inter alia: send written notice to the borrower by certified and regular mail that the loan is in default; provide a list of approved housing agencies that offer free or low-cost counseling; provide a phone number for counseling services (foreshadowing for those playing at home), and, advise that legal action may be commenced after ninety days if no action is taken to resolve the matter.[2] One purpose of RPAPL 1304 is to enable defaulted borrowers to “benefit from the information provided in the notice and the 90–day period during which the parties could attempt to work out the default without imminent threat of a foreclosure action, in an effort to further the ultimate goal of reducing the number of foreclosures”. CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550, 555 (2021) (citation and internal quotation marks omitted). The requisite language to be included within the RPAPL 1304 notice is provided in the statute and, for the most part, merely needs to be cut and pasted into the notice. See RPAPL 1304(1).
The failure of a lender to comply with RPAPL 1304 will result in the dismissal of a foreclosure complaint (see, e.g., U.S. Bank N.A. v. Beymer, 161 A.D.3d 543 (1st Dep’t 2018)) when the issue is raised by the borrower (see, e.g., One West Bank, FSB v. Rosenberg, 189 A.D.3d 1600, 1602-3 (2nd Dep’t 2020) (citation omitted)). A foreclosing lender must be in “strict compliance” with the requirements of RPAPL 1304. U.S. Bank Nat. Ass’n v. 22-23 Brookhaven, Inc., 219 A.D.3d 657, 664 (2nd Dep’t 2023). Indeed, “proper service of the notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action.” U.S. Bank N.A. v. Taormina, 187 A.D.3d 1095, 1096 (2nd Dep’t 2020) (citations omitted); see also U.S. Bank Trust, N.A. v. Atedgi, 2025 WL 699619, *2 (2nd Dep’t March 5, 2025). When failure to comply with RPAPL 1304 is raised as an affirmative defense, the foreclosing lender must demonstrate its compliance with the statute as part of its prima facie case. Bank of America, N.A. v. Wheatly, 158 A.D.3d 736, 737 (2nd Dep’t 2018) (citations omitted); Pennymac Corp. v. Levy, 207 A.D.3d 735, 736 (2nd Dep’t 2022). However, a “defense based on noncompliance with RPAPL 1304 may be raised at any time during the action.” Nationstar Mortgage, LLC v. Matles, 185 A.D.3d 703, 706 (2nd Dep’t 2020) (citations and internal quotation marks omitted). In Wells Fargo Bank, N.A. v. Davidson, 202 A.D.3d 880 (2nd Dep’t 2022), in reversing a judgment of foreclosure and sale and granting summary judgment to the borrowers, the Court stated that “[c]ontrary to the [lender’s] contention, the [borrowers] did not waive their contention that the [lender] failed to comply with RPAPL 1304 as a defense based on noncompliance with RPAPL 1304 may be raised at any time prior to the entry of a judgment of foreclosure and sale.” Davidson, 202 A.D.3d at 882 (citations, internal quotation marks and brackets omitted); see also U.S. Bank Nat. Ass’n v. Zakarin, 208 A.D.3d 1275, 1277 (2nd Dep’t 2022).
These issues were addressed by the Appellate Division, Second Department, on February 26, 2025, in Fed. Nat. Mort. Ass’n v. Williams-Jones. The lender in Williams-Jones commenced a mortgage foreclosure action. The borrower answered the complaint and alleged, inter alia, non-compliance with RPAPL 1304. The lender moved for summary judgment and to strike the borrower’s affirmative defense related to RPAPL 1304. As relevant to this article, the RPAPL 1304 notice annexed to the motion provided: (1) “If you need further information, please call the toll-free helpline at or visit the Department’s website at ” and (2) “If you need further information, please call the toll-free helpline at or visit the Department’s website at ”. Both the website address and the phone number in the statutory form at the time the relevant notices were sent were left blank and needed to be “filled in” by the lender (or the lender’s agent). The notices sent in Williams-Jones contained “blanks” as the necessary information was not “filled in.” On this basis, the borrower cross-moved for summary judgment dismissing the complaint for failure to comply with RPAPL 1304. The motion court denied the motion and cross-motion to the extent related to RPAPL 1304. The borrower appealed.
The Second Department reversed and dismissed the complaint. In so doing, the Court reiterated that when “an RPAPL 1304 notice fails to reflect information mandated by the statute, the statute will not have been strictly complied with and the notice will not be valid.” (Citation, internal quotation marks and ellipses omitted.) As the Court explained: at the time the RPAPL 1304 notices were purportedly sent to the defendant, the version of RPAPL 1304 in effect required the notice to include the following sentence: “If you need further information, please call the New York State Department of Financial Services’ toll-free helpline at (show number) or visit the Department’s website at (show web address)” (id. § 1304[1]; see L 2012, c 155, § 84 [eff July 18, 2012]).” Thus, the Court concluded that since “the notices failed to include the telephone number for the Department of Financial Services’ toll-free helpline—a piece of information specifically required by the version of RPAPL 1304 in effect at the time the notices were sent—the notices were facially defective, and the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against her should have been granted.” (Citations omitted.)
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issues that may be of interest to you. If you are interested in articles about RPAPL 1304, specifically, type “RPAPL 1304” into the “Search” box.
[2] RPAPL 1304 has been amended numerous times since 2008. To confirm compliance, it is important to know which version was in effect at the time that a particular RPAPL 1304 notice was sent.
