Second Department Dismisses Two Mortgage Foreclosure Actions For Failure to Comply With RPAPL 1306

• Posted on: Jun 27 2025

By: Jonathan H. Freiberger

This BLOG has written extensively on a wide variety of issues in the area of mortgage foreclosure.[1] One particular area that has been the subject of numerous articles is RPAPL 1304.[2] By way of brief background, and as addressed in numerous prior BLOG articles, the Second Department has stated that an “RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act (Real Property Law § 265-a), the underlying purpose of which is to afford greater protections to homeowners confronted with foreclosure.” Wells Fargo Bank, N.A. v. Yapkowitz, 199 A.D.3d 126, 131 (2^nd Dep’t 2021) (some citations and internal quotation marks omitted; hyperlink added). The Yapkowitz Court continued, noting that “RPAPL 1304 requires that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer must give notice to the borrower.” Id. (citations and internal quotation marks omitted, emphasis added).

The failure of the “lender, assignee or mortgage loan servicer” 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, 544 (1^st 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 (2^nd 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 (2^nd 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 (2^nd7 Dep’t 2020) (citations omitted).

A sister provision of RPAPL 1304 is RPAPL 1306, which provides, inter alia, that:

Each lender, assignee or mortgage loan servicer shall file with the superintendent of financial services (superintendent) within three business days of the mailing of the notice required by [RPAPL 1304] … the information required by subdivision two of this section. Notwithstanding any other provision of the laws of this state, this filing shall be made electronically as provided for in subdivision three of this section. Any complaint served in a proceeding initiated pursuant to this article shall contain, as a condition precedent to such proceeding, an affirmative allegation that at the time the proceeding is commenced, the plaintiff has complied with the provisions of this section.

RPAPL 1306(1). “Compliance with RPAPL 1306 is a condition precedent to commencing a foreclosure action.” Tri-State III, LLC v. Litkowski, 2025 WL 1699648 (2^nd Dep’t June 18, 2025) (citation omitted). “A proof of filing statement from the New York State Department of Financial Services is sufficient to establish, prima facie, that the plaintiff complied with RPAPL 1306.” Id. (citation omitted).

On June 25, 2025, the Appellate Division, Second Department, dismissed two cases for failure to comply with CPLR 1306.

Bank of New York Mellon v. Peralta In 2015, the Lender commenced a foreclosure action against the borrower to foreclose a mortgage. The borrower moved, inter alia, for summary judgment dismissing the complaint due to the lender’s failure to comply with RPAPL 1306. The Borrower appealed the motion court’s denial of the motion. In “modifying” the motion court’s order and dismissing the action, the Second Department stated:

“Compliance with RPAPL 1306 is a condition precedent to the commencement of a foreclosure action” (Deutsche Bank Natl. Trust Co. v Spanos, 180 AD3d 997, 999; see Hudson City Sav. Bank v Seminario, 149 AD3d 706, 707). “RPAPL 1306 requires that within three business days of the mailing of the foreclosure notice pursuant to RPAPL 1304(1), each lender or assignee ‘shall file’ certain information with the superintendent of financial services” (PROF-2013-S3 Legal Title Trust V v Johnson, 214 AD3d 745, 747, quoting RPAPL 1306[1]). “[S]trict compliance” with the statutory requirement of making the appropriate filing within three business days of the mailing of the RPAPL 1304 notice is required (TD Bank, N.A. v Leroy, 121 AD3d 1256, 1259).

Here, it is undisputed that the plaintiff did not make the requisite filing pursuant to RPAPL 1306 until November 4, 2014, eight business days after the purported mailing of the RPAPL 1304 notice on October 23, 2014. Since the plaintiff failed to strictly comply with the statutory requirement of making the appropriate filing within three business days of the mailing of the RPAPL 1304 notice, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint insofar as asserted against him (see Deutsche Bank National Trust Company v Goetz, _____AD3d_____ [decided herewith]; TD Bank, N.A. v Leroy, 121 AD3d at 1258-1260). [Hyperlinks added.]

Deutsche Bank Nat. Trust Co. v. Goetz

The lender commenced a foreclosure action against the borrower in 2012. In 2021, the lender renewed its motion for summary judgment and the borrower cross-moved for summary judgment dismissing the complaint for failure to comply with RPAPL 1304 and 1306. The motion court granted the lender’s motion and denied the borrower’s cross motion. Subsequently, the lender moved to confirm the referee’s report of amounts due and for a judgment of foreclosure and sale. The motion was granted and, on the borrower’s appeal, the Second Department reversed.

As to RPAPL 1304, the Court found that the lender’s evidentiary submissions failed to demonstrate compliance with the statutory requirements. As to RPAPL 1306, and as relevant to today’s article, the Court found that the lender failed to demonstrate the requisite compliance and stated:

Here, it is undisputed that the plaintiff did not make the requisite filing pursuant to RPAPL 1306 until 17 days after the purported mailing of the RPAPL 1304 notice (see id. § 1306[1]). As the plaintiff failed to comply with a condition precedent, the Supreme Court should have granted the defendant’s cross-motion, in effect, for summary judgment dismissing the complaint insofar as asserted against him. [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, issue that may be of interest you.

[2] This BLOG has written numerous articles addressing RPAPL 1304. To find such articles, please see the BLOG tile on our website and type “1304” into the “search” bar.