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THE PLAINTIFF’S COMPLAINT IN THIS FORECLOSURE ACTION DID NOT INCLUDE ALLEGATIONS OF COMPLIANCE WITH RPAPL 1306, WHICH IS A CONDITION PRECEDENT TO SUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not include in its complaint in this foreclosure action the allegation it had complied with RPAPL 1306, which is a condition precedent to suit:

RPAPL 1304(1) provides that, “with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “RPAPL 1306 provides, in . . . part, that within three business days of the mailing of the foreclosure notice pursuant to RPAPL 1304(1), every lender or assignee ‘shall file’ certain information with the superintendent of financial services, including ‘at a minimum, the name, address, last known telephone number of the borrower, and the amount claimed as due and owing on the mortgage, and such other information as will enable the superintendent to ascertain the type of loan at issue'” … . RPAPL 1306(1) further provides that any complaint served in a foreclosure proceeding “shall contain, as a condition precedent to such proceeding, an affirmative allegation that at the time the proceeding is commenced, the plaintiff has complied with the provisions of this section.”

Here … the complaint did not contain an allegation that the plaintiff complied with RPAPL 1306. Thus, a condition precedent to suit was not satisfied, and the plaintiff failed to establish its entitlement to summary judgment on the complaint … . USA Residential Props., LLC v Jongebloed, 2022 NY Slip Op 01835, Second Dept 3-16-22

Practice Point: If the bank does not allege in its foreclosure complaint compliance with the requirements of RPAPL 1306, it has not satisfied a condition precedent to suit.

 

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