Can the 90 Day Pre-foreclosure Notices be mailed to the Borrowers by Counsel for the Lender

Pursuant to RPAPL §1304 (1) At least 90 days before a lender, assignee or mortgage servicer
commences a foreclosure action concerning a “home loan”, the lender, assignee or servicer shall
giver the Borrower the notice required pursuant to the statute, which is commonly referred to as
the 90 day Notices.

Subdivision 2 of the Statute specifically 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…”
While the statute does not specifically grant the authorization to counsel for the lender, assignee
or mortgage servicer to sent the 90 day notices, the NYS Courts have ruled that counsel could
send the notices.

In Flagstar Bank, FSB v. Mendoza, 139 AD3d 898, 32 NYS3d 278 (2nd Dept. 2016), the
Appellate Court held that RPAPL §1304 does not preclude an attorney acting on behalf of the
lender from sending the 90 day notices.

In order to prove compliance with the statute, counsel must prove proof of the actual mailing day
notices. In Ventures Trust 2013-I-H-R By MCM Capital Partners, LLC v. Williams, 184 Ad3d
893, 127 NYS3d 36 (2 nd Dept 2020), the Court held that “the unsubstantiated and conclusory
statement of the plaintiff’s attorney in an affidavit submitted in support of the motion that RPAPL
1304 notice was properly mailed to the defendant is insufficient to establish compliance with the
statute as a matter of law.” Citing Central Mortgage Co. v. Abraham, 150 AD3d 961, 55 NYS3d
336; Citibank, NA v. Wood, 150 Ad 3d at 814, 55 NYS3d 109).

In the Flagstar Bank, FSB v. Mendoza case, the Court found that the Plaintiff had established
compliance with the statute regarding the mailing of the 90 day notices where the attorney
submitted an affidavit, which described the firm’s standard business practice with regard to
sending the notices to borrowers, and affirmed based upon the review of the business records
pertaining to the subject loan, that the notices were sent in compliance with the statute and the
plaintiff submitted copies of the notices, domestic return receipts, with date of delivery and
signature of one of the borrowers.