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Enough Already With RPAPL 1304

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  • Posted on: Jul 29 2022

By Jonathan H. Freiberger

This Blog frequently covers the pre-foreclosure notice requirements of RPAPL 1304See, e.g., [here], [here], [here], [here], [here], [here], [here], [here], [here], [here], [here] and [here].  While this stuff is interesting, it also happens to be the subject of frequent decisions from First and Second Departments.  This week numerous RPAPL 1304 cases were decided and three will be discussed today.

Briefly, as noted in prior Blog 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, assignee or mortgage loan servicer” must: 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; and, advise that legal action may be commenced after ninety days if no action is taken to resolve the matter.

U.S. Bank National Association v. Maioriellodecided July 26, 2022, by the Appellate Division, First Department

As we have discussed in the past, for the purpose of consistency in its application, Courts are strictly interpreting RPAPL 1304.  In October of 2021, we wrote about Wells Fargo Bank, N.A. v. Yapkowitz, 199 A.D.3d 126 (2nd Dep’t 2021), where the Court, in deciding an “issue of first impression before [that] Court,” held that where there are two or more borrowers, mailing a jointly addressed 1304 notice is “insufficient to satisfy the requirements of RPAPL 1304.”  Each borrower must be sent a separate notice.  Relying on Yapkowitz, the First Department in Maioriello, in dismissing lender’s complaint, held that lender’s “mailing of a 90-day notice jointly addressed to both borrowers did not comply with RPAPL 1304.”  The Court also held that “[a]lthough [borrowers] failed to raise this point before the motion court, the issue of [lender]’s strict compliance with RPAPL was before the motion court and the noncompliant nature of the jointly addressed notices may be addressed on appeal, as the deficiency is apparent on the face of the record and could not have been avoided if brought to the court’s attention at the proper juncture.”

Pennymac Corp. v. Levydecided July 27, 2022, by the Appellate Division, Second Department

Borrowers in Levy delivered a mortgage to secure their payment obligations under a promissory note.  On borrowers’ default in 2010, lender commenced its foreclosure action in 2012.  In their answer – you guessed it –borrowers asserted as an affirmative defense the lenders failure to comply with RPAPL 1304 (among other things).  Borrowers appealed from the grant of lender’s motion for summary judgment.  The Second Department reversed.

The Court recognized that a lender moving for summary judgment in a residential mortgage foreclosure action, inter alia, “must tender sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304.”  (Citation and internal quotation marks omitted.)  The Court also noted that by requiring the sending of RPAPL 1304 notices by both regular and certified mail, “the Legislature implicitly provided the means for the [lender] to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.”  (Citations and internal quotation marks omitted.)

Compliance with RPAPL 1304 was not demonstrated by lender in Levy.  The Court found that lender “failed to submit an affidavit of service or proof of mailing by the United States Postal Service evidencing that it properly served the defendants.”  Further, lender’s reliance on the affidavit of a representative of lender’s loan servicer was rejected.  Despite the representative’s claim of “personal knowledge,” “he did not purport to be familiar with the office procedure for mailing notices once they have been generated, and, therefore, he did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed.”  (Citations omitted.)  Finally, the Court rejected the “unsigned” certified mail receipts with no postmarks as insufficient to prove that the notices were mailed.  Lender also failed to produce evidence of regular first-class mailing.

U.S. Bank v. Hussaindecided July 27, 2022, by the Appellate Division, Second Department

In 2007, borrower borrowed $350,000 from Bank of America, which obligation was secured by a mortgage on borrower’s property in Queens, New York.  The note and mortgage were assigned to the plaintiff (“lender”).  Lender commenced its foreclosure action after borrower’s default.  Lender’s motion for summary judgment, and its subsequent motion for renewal and reargument, were denied. The Court found that lender failed to “establish, prima facie, that it strictly complied with the requirements of RPAPL 1304.”  The affidavit from an officer of lender’s loan servicer was insufficient to demonstrate compliance with RPAPL 1304 because “the RPAPL 1304 notices were not incorporated as exhibits to [the] affidavit, and therefore, her description of the documents constituted inadmissible hearsay.”  (Citations omitted.)  Further, as in Levy, lender “also failed to include any United States Postal Service mail return receipts, affidavits of mailing, or other proof that the mailing actually occurred and the [loan servicer’s officer’s] affidavit failed to adequately describe either personal knowledge of the mailing or the standard office mailing procedures of the loan servicer.”


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.

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