In a continuing effort to minimize homestead foreclosures in the Empire State, New York Real Property Actions and Proceedings Law (RPAPL) Section 13041 requires notice be sent to the mortgagor at least 90 days before a foreclosure action is commenced against the borrower. This provision applies no matter the type or balance of the loan and is equally applicable to lenders, assignees, and mortgage loan servicing companies. RPAPL § 1304 governs the content, formatting, mailing, and addressing of the notice, but it also specifies that the proper form and service of such notice is a “condition precedent2 to commencing a foreclosure proceeding” in New York. This means that proper notice must be sent in accordance with the requirements of the statute before a foreclosure action can be filed in the Supreme Court of the county where the property is located. Failure to adhere to the detailed requirements of RPAPL § 1304, therefore, may defeat the foreclosure itself.
Requirements of the 90-Day Foreclosure Letter
As the purpose of sending the 90-day foreclosure letter is to avoid foreclosure litigation, the letter itself is designed to encourage the defaulting borrowing to seek assistance with his loan prior to foreclosure. The letter must be written in 14-point font and generally include the following:
A warning that you may be at risk for foreclosure;
The details of your default, including length and monetary default;
Options for keeping your home, including loan modification or reinstatement;
A list of government-approved housing counseling agencies that the borrower may contact for assistance and advice;
A warning that 90-days of inaction may result in foreclosure; and
A notice that you have the right to remain in your home until a court order is received indicating otherwise.
Mailing requirements for the letter must be strictly adhered to, and the lender must ensure that the letter is sent by either registered or certified mail and by first-class mail to both the residence that is the subject of the potential foreclosure and the last known address of the defaulting borrower, if applicable. The letter must further be sent in an envelope separate from any other mailing or notice, meaning that the lender should not send the letter in conjunction with the most recent statement of default or request for payment. The notice must also be in the borrower’s native language if he or she has limited English proficiency.
Proof of Service under New York Law
RPAPL § 13063 serves as a type of protection for the lender if the filing of the 90-day notice letter is challenged in court. Under this code section, within three days of the letter’s mailing, the lender is required to file with the Superintendent of Financial Services, located within the New York State Department of Banking, proof of proper mailing. If a foreclosure complaint is served on the borrower thereafter, the lender must affirmatively state in the complaint that the lender complied with the provisions of RPAPL §§ 1304 and 1306. Because proof of mailing and filing must be plead affirmatively, if the borrower either did not receive notice or received defective notice, he must raise such as an affirmative defense and deny the allegation that notice was properly mailed and/or received.
New York case law has further expounded upon the proof required for service beyond that specified in the RPAPL. The Appellate Division, Second Department recently held in CitiMortgage, Inc. v. Pappas4that proof of mailing of the 90-day notice must be established by an affidavit of service or proof of mailing receipt from the post office, and the affidavit of service must also be signed by someone who is familiar with the plaintiff’s mailing processes and procedures so as to establish the standard office practice of mailing. It should be noted, however, that this is not the only means of proving service. The court in CitiMortgage did acknowledge that certain business documents could also be admitted into evidence and used to prove compliance with the statutes provided they meet the hearsay exception for documentary evidence as set forth in CPLR § 4518(a) 5:
The document was made in the regular course of business;
It was the regular practice of the business to make such documents; and
The document directly relates to the occurrence or transaction at issue.
Electronic records are also admissible for this purpose. Accordingly, if it was the regular practice of the lender at the time the notice was mailed to make a note in the borrower’s file that such notice was sent, then such evidence may be admissible to prove mailing under the business documents exception of the laws of evidence.
Challenging Service and Receipt
If you did not receive notice of an impending foreclosure or the notice itself was defective, your foreclosure attorney can move to dismiss the lender’s complaint under certain circumstances. If the lender failed to affirmatively plead notice under RPAPL §§ 1304 and 1306, you may move to dismiss the action at its inception. But if the lender has properly alleged such and you deny that the notice was proper, your attorney can move for summary judgment and the court must address the issue at the forefront of the litigation to determine whether it has jurisdiction. If the notice was sent less than 90-days before the foreclosure litigation was commenced, was written in the wrong language, or it did not contain the basic information as required by the statute, a court of law would likely find that the notice was clearly defective and dismiss the action.
However, what if the defect was minor, such as sending the letter in 12-point font instead of 14-point font, or not sending the notice in its own envelope? Some New York courts have held that minor defects cannot work to defeat a subsequent buyer’s title6 after a foreclosure sale; however, because jurisdiction is granted to courts by virtue of the statute itself, even a minor defect in service and/or notice may defeat the foreclosure action. If a defect is minor, such as failure to send the letter by first-class mail in addition to certified mail, but the content of the notice was proper, the court will have to determine whether it can proceed with the foreclosure action under such circumstances.
Contact a Long Island Foreclosure Attorney with Questions About Your 90-Day Notice
Because New York law specifically makes it a prerequisite to foreclosure jurisdiction to serve proper notice upon the defaulting borrower, if you received a defective 90-day notice letter or the notice was defectively served, you may have a full defense to any future foreclosure litigation against you. A Long Island foreclosure lawyer may be able to get a foreclosure action against you dismissed, and if the statute of limitations has run on the action itself, the bank may not have any further options. If you recently received a 90-day foreclosure notice or a foreclosure complaint has recently been filed against you, contact Ronald D. Weiss, P.C., Attorney at Law. Mr. Weiss is a premier foreclosure attorney on Long Island, specializing in Nassau and Suffolk Counties, and he can analyze the specific facts of your case to determine whether your lender has standing to foreclose. To schedule a consultation with Mr. Weiss, call us today at 631-479-2455 or send us an email through our online contact form.
