13.11 A. 90-Day Notice For Home Loans

• Jurisdiction: New York

a. 90-Day Notice for Home Loans

Prior to instituting legal action against a borrower where the subject of the action is a “home loan,” a 90-day notice must be served.²⁰⁹¹ The notice requirement must be strictly complied with,²⁰⁹² is a condition precedent to foreclosure of a home loan,²⁰⁹³ and the failure to provide it is a defense to the action.²⁰⁹⁴ The failure to prove mailing of the notice can lead to dismissal of the complaint.²⁰⁹⁵ If not raised as a defense by the borrower (and only the borrower, as the defense is personal to the borrower), however, the plaintiff is not required to prove compliance.²⁰⁹⁶ Mere denial of receipt is insufficient to rebut the presumption of proper mailing when presented, but once a borrower raises an issue of noncompliance with RPAPL § 1304, then the plaintiff must make a prima facie case of compliance.

The text of the notice must be in no less than 14-point type and must read as set forth in the RPAPL § 1304.

The 90-day notice is required to be sent by a lender, an assignee, or a mortgage loan servicer at least 90 days prior to commencement of a legal action against the borrower by registered or certified mail and by first class mail to the borrower’s last known address. If the last known address is different from the mortgaged premises, then the 90-day notice must also be sent to the mortgaged premises. The 90-day notice must be sent in an envelope separate from any other mailing or notice to each borrower separately.

The 90-day notice only needs to be mailed once in a 12-month period to the same borrower for the same loan and the same default, but, if the default is cured, and the borrower defaults again within the 12 months, a new 90-day notice must be mailed.²⁰⁹⁷

Proof of Compliance with RPAPL § 1304 is a heavily litigated defense asserted by defendant borrowers. In order to comply with the statute, Plaintiff must establish “proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.”²⁰⁹⁸ The best practice is to include an affidavit of mailing from the individual, who personally mailed the RPAPL § 1304 notices.

Banking Department Filings are governed by RPAPL § 1306, which provides that “each lender, assignee or mortgage loan servicer shall file with the superintendent of financial services...