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ALTHOUGH THE RPAPL 1304 NOTICE OF FORECLOSURE COMPLIED WITH THE STATUTE WHEN IT WAS SENT, IT DID NOT COMPLY WITH THE VERSION OF THE STATUTE IN EFFECT WHEN THE ACTION WAS COMMENCED; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the RPAPL 1304 notice of foreclosure was sufficient at the time it was served, it did not meet the RPAPL 1304 notice requirements at the time the action was brought:

RPAPL 1304(1) provides that “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.” “‘Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action'” … . “Where an RPAPL 1304 notice fails to reflect information mandated by the statute, . . . the statute will not have been strictly complied with and the notice will not be valid” … .

Here, although the language in a 90-day notice sent … in November 2016 complied with the language set forth in RPAPL 1304 as it existed at the time the notice was mailed … , the plaintiff failed to establish, prima facie, that the notice complied with the language set forth in RPAPL 1304 as it existed at the time this action was commenced in December 2018 … . Since there was more than a two-year period between the time that the notice was sent and the time that the action was commenced, “[n]othing prevented the plaintiff from sending the defendant a new RPAPL 1304 notice, using the updated language, 90 days prior to commencing this action” … . Accordingly, as the plaintiff failed to establish, prima facie, strict compliance with RPAPL 1304, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint … . Wilmington Sav. Fund Socy., FSB v Scarso, 2025 NY Slip Op 04745, Second Dept 8-20-25

Practice Point: RPAPL 1304 must be strictly complied with. Here the RPAP 1304 notice of foreclosure complied with the statute when it was sent, but not when the action was commenced. The bank’s summary judgment motion should have been denied.

 

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