Pleading Service in the Affirmative
A defaulting borrower can challenge the court’s jurisdiction to proceed beyond the pleadings stage in a foreclosure action by asserting that either:
- He or she never received the 90-day foreclosure notice; or
- The notice itself was defective.
Again, because service of a proper 90-day foreclosure letter is a condition precedent to proceeding with a foreclosure action—i.e., failure to abide by the requirement will strip the Supreme Court of jurisdiction—the lender must affirmatively plead compliance with the RPAPL in the foreclosure complaint. This is the first requirement for proving notice compliance, but it is only one of many.
If the borrower challenges jurisdiction based on lack of receipt of the notice, the lender is afforded some protection if it complied with the requirements of RPAPL § 1306.3 Pursuant to this code section, within three days of the letter’s mailing, the lender is required to file with the Superintendent of Financial Services proof of mailing in accordance with the statutory requirements for such. The Second Department recently held in CitiMortgage, Inc. v. Pappas4 that an affidavit of service or proof of mailing receipt from the Post Office must establish proof of mailing the 90-day notice, and someone who is familiar with the lender’s mailing processes and procedures must also sign the affidavit of service. CitiMortgage, Inc. v Pappas, 2017 NY Slip Op 01177. 2nd Dept 2-15-17.
This means that an affidavit of service from the mailer herself or the mail clerk will likely go further than a general affidavit from the bank’s president. The court in CitiMortgage did acknowledge, however, that certain business documents can be admitted into evidence and used to prove compliance provided the documents meet the hearsay exception for documentary evidence as set forth in CPLR § 4518(a):5
- The document was made during 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 a 90-day foreclosure notice was sent, then such evidence may be admissible to prove mailing under the business documents exception of the laws of evidence.
Proving Proper Content
If a lender is able to prove proper mailing of the 90-day foreclosure notice, a borrower may still challenge the form and content of the same. 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 its length and arrears;
- 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.
A letter that simply informs the borrower of his default and potential for foreclosure is not sufficient to comply with the 90-day notice requirements, as the very purpose of the notice is to assist the borrower in remaining in his home. If the borrower is defending the foreclosure action on the ground that the notice was received but was defective, the court will necessarily have a copy of the notice before it. Accordingly, it is not difficult to ascertain whether the notice complies with the stick standards set forth in the RPAPL, which even provides the sample language that should be included in the notice. The question, therefore, is whether such a defect is minor or material, and if so, what action the court should take with regard to the same.
Minor v. Material Defects
While a court may overlook a failure to use the proper font size on a 90-day foreclosure letter, certain defects in notice may be considered material so as to prevent foreclosure litigation from moving forward. Disconnects in your lender’s (or servicer’s) office may cause the foreclosure complaint to be filed before the 90-day notice period has expired. Further, RPAPL § 1304(5) requires the notice be sent in the borrower’s native language if the borrower has a limited English proficiency and the language is one of the six most common languages6 spoken in New York, which include:
- Russian; and
Accordingly, failure to abide by the language requirements may be considered material if proof is submitted that the lender was on notice that the borrower was not English proficient, such as an indication of language on the mortgage application or evidence of previous communications between the lender and borrower in the borrower’s native language. To overcome this objection, lenders must generally submit to the court a copy of the 90-day foreclosure letter with proof of mailing in both English and the borrower’s native language.
Although material defects such as the timeliness of the litigation and failure to translate the notice will divest the court of jurisdiction over the foreclosure complaint, if the defect is minor it will be up to your foreclosure attorney to argue its materiality before the judge, who will make the final decision regarding the substance of the letter itself and the legislature’s statutory intent.
Contact a Long Island Foreclosure Lawyer to Protect your Rights as a Borrower
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 never served, you may have a full defense against foreclosure litigation. A Long Island foreclosure lawyer may be able to get a foreclosure action against you dismissed, and if the statute of limitations has run out on the action itself, the bank may not have any further options. If a foreclosure complaint has recently been filed against you, contact Ronald D. Weiss, P.C., Attorney at Law. He is your 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. Contact him today online or at (631) 271-3737 for a no-risk consultation.