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Bank’s Failure to Strictly Comply With the Filing Deadline in RPAPL 1306 Required Dismissal of the Complaint Seeking Foreclosure

In this mortgage foreclosure action, the Third Department determined that the bank’s failure to submit admissible proof of compliance with the service requirements of RPAPL 1304 precluded summary judgment, and the bank’s unexplained failure to comply with the filing deadline in RPAPL 1306 required dismissal of the complaint seeking foreclosure:

Defendant was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to comply with RPAPL 1306. That statute provides that lenders “shall file with the superintendent of financial services (superintendent) within three business days of the mailing of the notice required by [RPAPL 1304]” a form containing certain information regarding the borrower and mortgage (RPAPL 1306 [1]; see RPAPL 1306 [2]). The statute further states that “[a]ny complaint served in [an action] initiated pursuant to [RPAPL article 13] shall contain, as a condition precedent to such [action], an affirmative allegation that at the time the [action] is commenced, the plaintiff has complied with the provisions of this section” (RPAPL 1306 [1]). * * *

RPAPL 1306’s condition precedent to commencing a foreclosure action is strict compliance with the first sentence of the statute. In other words, a lender has only complied with the condition precedent if the lender has filed the appropriate form with the superintendent within three days of mailing the RPAPL 1304 notice to the borrower. TD Bank NA v Leroy, 2014 NY Slip Op 07047, 3rd Dept 10-16-14

 

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