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HERE PLAINTIFF BANK FAILED TO PROVE THAT THE RPAPL 1304 NOTICE INCLUDED A LIST OF AT LEAST FIVE HOUSING COUNSELING AGENCIES IN THE REGION WHERE DEFENDANT LIVED; FAILURE TO DEMONSTRATE STRICT COMPLIANCE WITH THE RPAPL 1304 NOTICE REQUIREMENTS REQUIRED DENIAL OF THE BANK’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to strictly comply with the content requirements of the RPAPL 1304 notice of foreclosure precluded summary judgment:

… [I]n support of its motion … for summary judgment on the complaint, the plaintiff submitted … an affidavit of Shae Smith, a vice president of loan documentation for the plaintiff, who averred therein that a 90-day notice was mailed to the defendant on April 14, 2010. Smith annexed to the affidavit a copy of the notice, which included a list of 17 “HUD Approved Housing Counseling Agencies.” However, the plaintiff failed to establish, prima facie, that, of the 17 agencies listed in the RPAPL 1304 notice to the defendant, at least 5 of those agencies served the region where the defendant resided … . Contrary to the plaintiff’s contention, the failure to provide a list of five housing counseling agencies as required by the statute is not a defect that may be disregarded pursuant to CPLR 2001 … .

Since the plaintiff failed to establish its 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 and for an order of reference without regard to the sufficiency of the defendant’s opposition papers … . Wells Fargo Bank, N.A. v Curtis, 2026 NY Slip Op 05348, Second Dept 9-16-26

Practice Point: Proof of strict compliance with the content-requirements of an RPAPL 1304 notice of foreclosure is a prerequisite for summary judgment.

 

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