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(347)-508-9316The Law Office of Ronald D. Weiss, PC has obtained Dismissal Orders from Supreme Court Judges dismissing actions on the grounds that these 90 Day Notices do not comply with RPAPL §1304.These cases were US Bank National Association v. Jongebloed (Suffolk Index # 6798/2013 and US Bank National Association v. Dunne ( Suffolk Index # 611756/2017).
In Wells Fargo Bank, N.A. v. Yapkowitz, 199 AD3d 126, 155 NYS3d 163 (2nd Dept. 2021), the Appellate Division held that:
“We hold that the mailing of a 90-day notice jointly addressed to two or more borrowers in a single envelope is not sufficient to satisfy the requirements of RPAPL 1304, and that the plaintiff must separately mail a 90-day notice to each borrower as a condition precedent to commencing the foreclosure action.”
The Appellate Division provided the following rationale for its holding:
“RPAPL 1304 (1) provides that giving “notice to the borrower,” in the singular, at least 90 days prior to the commencement of the foreclosure action, is a prerequisite to commencement of the action “against the borrower, or borrowers” (emphases added). By contrast, RPAPL 1304 (2), which sets forth the mailing requirements for the 90-day notice, contains no reference to “borrowers” in the plural. RPAPL 1304 (2) requires the 90-day notice to be sent by registered or certified mail, and also by first-class mail, to both (1) “the last known address of the borrower” and (2) “the residence that is the subject of the mortgage.” Further, RPAPL 1304 (2) provides that “[t]he notices required by this section shall be sent . . . in a separate envelope from any other mailing or notice.” While mailing a notice jointly addressed to multiple borrowers at the property which is the subject of the mortgage would clearly be sufficient to satisfy the requirement of sending the 90-day notice to “the residence that is the subject of the mortgage” (id.), such mailing would not also satisfy the separate requirement under RPAPL 1304 (2) to mail “[t]he notices required by this section . . . to the last known address of the borrower” (and to mail each such notice in a separate envelope from any other required notice). Had the legislature intended the mailing of a notice jointly addressed to two or more borrowers to satisfy the requirements of RPAPL 1304 (2), it would have stated, as it did in RPAPL 1304 (1) with regard to the commencement of a foreclosure action, that the 90-day notice must be mailed to “the last known address of the borrower or borrowers.”
The problematic circumstances which might arise if the legislature had drafted RPAPL 1304 (2) to permit a mailing to “the last known address of the borrower or borrowers” are not difficult to envision. Ideally, when one of the borrowers receives a 90-day notice jointly addressed to two or more borrowers, he or she will inform the other borrower(s). However, this ideal scenario clearly will not always occur, and even a matter as urgently pressing as the receipt of a 90-day notice of foreclosure proceedings might not be communicated if, for instance, there is a breakdown of communication between the borrowers. In Aurora Loan Servs., LLC v Weisblum (85 AD3d 95 [2011]), this Court addressed this issue, rejecting the plaintiff’s claim that a failure to serve a RPAPL 1304 notice on one of the borrowers was inconsequential due to the likelihood she became aware of the notice sent to her husband (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106-107). Since the purpose of RPAPL §1304 is to take measures aimed at ensuring notice to the borrowers of an impending foreclosure action “in an attempt to avoid litigation” (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107), it would subvert the legislative purpose of the statute to shift the burden of providing notice to each borrower from the lender or mortgage loan servicer to one of the borrowers who happens to sign for the envelope.”
1. If the 90 Day Notices were addressed to both borrowers and were not mailed in separate envelopes to each Borrower, the foreclosure action must be dismissed as the Plaintiff failed to comply with RPAPL 1304(2).
2. In Deutsche Bank National Trust Co. v. Bancic, 2022 WL 946008, the Appellate Court stated that:
“Moreover, [a] defense based on noncompliance with RPAPL § 1304 may be raised at any time during the action’ ” (HSBC Bank USA, N.A. v. Cardona, 193 A.D.3d 696, 698, 147 N.Y.S.3d 75, quoting Wells Fargo Bank, N.A. v. Morales, 178 A.D.3d 881, 882, 114 N.Y.S.3d 392).”
3. Compliance with RPAPL § 1304 “is a condition precedent to the commencement of a foreclosure action . . . [and] is a defense which may be raised at any time.” Flagstar Bank FSB v. Jambelli, 140 A.D.3d 829, 32 NYS3d 625 (2d Dept. 2016) citing U.S. Bank N.A. v Carey, 137 AD3d at 896; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2015]; Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 105). The plaintiff’s failure to show strict compliance with this statute requires dismissal. Hudson City Sav. Bank v. DePasquale, 113 AD3d 595, 596, 977 NYS2d 895 (2d Dept 2014); Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910, 961 NYS2d 200 (2d Dept 2013); Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95 (2d Dept 2011).
4. RPAPL § 1304 (2) provides that:
“The notices required by this section shall be sent by such lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage. The notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice. Notice is considered given as of the date it is mailed. The notices required by this section shall contain a current list of at least five housing counseling agencies serving the county where the property is located from the most recent listing available from department of financial services. The list shall include the counseling agencies’ last known addresses and telephone numbers. The department of financial services shall make available on its websites a listing, by county, of such agencies. The lender, assignee or mortgage loan servicer shall use such lists to meet the requirements of this section.”
5. The plaintiff or mortgagee has the burden of proving the allegations that it fully complied with the strict requirements of RPAPL § 1304 by tendering sufficient evidence demonstrating such compliance. See Weisblum, 85 AD3d at 106.
6. Thus, the Defendant can make a prima facie violation of the Defendant’s procedural due process rights required under RPAPL § 1304(2), as Plaintiff has not complied with the strict compliance provisions within this section and, this action must be dismissed.
