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THE BANK’S FAILURE TO COMPLY WITH THE NOTICE-OF-FORECLOSURE REQUIREMENTS OF RPAPL 1304 CAN BE RAISED AT ANY TIME BEFORE THE JUDGMENT OF FORECLOSURE AND SALE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the bank’s failure to comply with the notice provisions of RPAPL 1304 can be raised as a defense at any time before the judgment of foreclosure and sale. Here the defense was raised in opposition to the bank’s motion to confirm the referee’s report:

… “[F]ailure to comply with RPAPL 1304 is a defense that may be raised at any time prior to the entry of judgment of foreclosure and sale” … and thus, the defendants properly raised it in opposition to the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale.

“Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … . RPAPL 1304 requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower … .

… The affidavit of Brittany Wilson, an officer of Wells Fargo Bank, N.A. … , the servicing agent of the plaintiff, was insufficient to establish that the plaintiff complied with RPAPL 1304. While Wilson attested that she was familiar with Wells Fargo’s records and record-keeping practices and that the plaintiff complied with RPAPL 1304 by mailing the required notices, which were attached to her affidavit, she failed to attest that she personally mailed the notices or that she was familiar with the mailing practices and procedures of Wells Fargo. Therefore, the plaintiff “failed to establish proof of standard office practice and procedures designed to ensure that items are properly addressed and mailed” … . U.S. Bank N.A. v Valencia, 2023 NY Slip Op 04426, Second Dept 8-30-23

Practice Point: The bank’s failure to demonstrate compliance with the notice of foreclosure requirements of RPAPL 1304 can be raised at any time before the judgment of foreclosure and sale.

 

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