SENDING THE NOTICE OF FORECLOSURE TO BOTH BORROWERS IN THE SAME ENVELOPE VIOLATED RPAPL 1304 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the bank in this foreclosure action failed to comply with RPAPL 1304 by sending the notice of foreclosure to both borrowers in the same envelope:

As the Second Department noted, the language of RPAPL 1304 (1) is careful to distinguish a borrower, singular, from borrowers, plural (see Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d at 134). However, RPAPL 1304 (2), which requires that notices be sent in separate envelopes, only discusses “borrower,” singular (see Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d at 134; RPAPL 1304 [2]). In that case, the Court also drew attention to the fact that, although it is possible that whichever borrower reads the notice would alert the other borrower of the mailing, this is not always what occurs (see Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d at 135). Accordingly, we now also adopt the holding of the Second Department in Wells Fargo Bank, N.A. Thus, given that the requisite 90-day notices were jointly addressed to both borrowers, plaintiff did not comply with RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Zatari, 2023 NY Slip Op 05436, Third Dept 10-26-23

Practice Point: Sending the notice of foreclosure to two borrowers in the same envelope is a violation RPAPL 1304.