New York Real Property Actions and Proceedings Law (RPAPL) Section 1304 requires financial institutions and loan servicing companies to provide homeowners, on residential property, at least 90 days notice before initiating a foreclosure lawsuit. The banks and/or their loan servicers must also provide the homeowner with the form of notice prescribed by the statute which provides among other things notice to the homeowner that a foreclosure lawsuit may be initiated. This notice is referred to as the 90 day pre-foreclosure notice.
The statute states the notice must be served “by registered or certified mail and also by first class mail to the last known address of the borrower, and if different, to the residence that is the subject of the mortgage.”
Compliance With RPAPL Section 1304
Many lenders seek to meet the compliance requirements of this section by submitting an affirmation by their attorney with a summary judgment motion that the certified and regular mailing requirements have been complied with. However the attorneys for the lenders have no personal knowledge these events actually took place. Therefore their affirmation that they took place is meaningless! Attorney’s affirmations should not be considered by courts to justify compliance with RPAPL section 1304.
Affidavits of Loan Service
Some lenders try to comply with RPAPL section 1304 by including in their motions for summary judgment representations by the loan servicer that the mailing requirements under RPAPL secion 1304 have been complied with. This is also nonsense! The loan servicer is usually hired by the financial institution long after the mailing requirement under this section needed to be complied with. The servicer therefore has no personal knowledge as to whether this section of the Real Property Law was complied with.
Conclusion
The failure of the financial institution to comply with RPAPL section 1304 provides a basis for an affirmative defense to a foreclosure lawsuit. A motion can be made by the homeowner’s attorney to dismiss the lawsuit for the failure of the financial institution to comply with this section. In other situations it can be used to cause a court to deny a summary judgment motion on behalf of the bank because they have not fulfilled the prerequisites necessary to bring the foreclosure lawsuit.
Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area who are behind on their mortgages, seeking mortgage modifications, or have been served with notices concerning foreclosures. The office offers free consultations.
