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THERE IS A QUESTION OF FACT WHETHER THE BANK USED THE CORRECT LANGUAGE IN ITS RPAPL 1304 NOTICE OF FORECLOSURE; THE LEGISLATION HAD BEEN AMENDED CHANGING “YOU COULD LOSE YOUR HOME” TO “YOU MAY BE AT RISK OF FORECLOSURE;” RPAPL 1304 MUST BE STRICTLY COMPLIED WITH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants in this foreclosure action raised a question of fact whether the bank complied with the notice requirements in RPAPL 1304, which had been changed prior to the commencement of the foreclosure action:

On December 20, 2016, the Legislature amended RPAPL 1304 to change the language required in the 90-day notice … . The amendment changed the opening language from “YOU COULD LOSE YOUR HOME” to “YOU MAY BE AT RISK OF FORECLOSURE” … . The amendment also added the language: “IMPORTANT: You have the right to remain in your home until you receive a court order telling you to leave the property. If a foreclosure action is filed against you in court, you still have the right to remain in the home until a court orders you to leave. You legally remain the owner of and are responsible for the property until the property is sold by you or by order of the court at the conclusion of any foreclosure proceedings. This notice is not an eviction notice, and a foreclosure action has not yet been commenced against you” … . This statutory language was in effect at the time this action was commenced, in July 2018 … .

Here, the plaintiff failed to establish that the notice sent to the defendants complied with the statutory language of RPAPL 1304 as it existed at the commencement of the action. Since the notice was sent more than a year and a half prior to the commencement of the action, nothing prevented the plaintiff from sending the defendants a new RPAPL 1304 notice, using the updated language, 90 days prior to commencing the action … . The defendants, therefore, raised a triable issue of fact as to whether the plaintiff strictly complied with RPAPL 1304 as it existed at the time the action was commenced. Bank of Am., N.A. v Thomas, 2026 NY Slip Op 04485, Second Dept 7-22-26

Practice Point: Here the bank failed to establish it used the correct statutory language in its RPAPL 1304 notice of foreclosure, raising a question of fact about whether RPAPL 1304 was strictly complied with.

 

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