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THE INCLUSION OF ADDITIONAL INFORMATION IN THE ENVELOPE CONTAINING THE RPAPL 1304 90-DAY NOTICE OF FORECLOSURE DID NOT VIOLATE THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the inclusion of additional information the the envelope with the RPAPL 1304 90-day notice of foreclosure did not invalidate the notice (in light of a recent Court of Appeals decision):

The Court of Appeals held that RPAPL 1304 does not prohibit the inclusion of additional information in the envelope that may help borrowers avoid foreclosure and is not false or misleading … .

Here, information about HAMP [Home Affordable Modification Program] was sent with the 90-day notice. This information was relevant to avoiding foreclosure and was not false or misleading. Therefore, pursuant to the Court of Appeals’ decision in Kessler ]39 NY3d 317] and the subsequent case law, the inclusion of this information with the 90-day notice did not violate the “separate envelope” requirement of RPAPL 1304(2). The plaintiff otherwise established that it sent the RPAPL 1304 notice as required by the statute. Thus, the plaintiff established, prima facie, that it complied with the notice requirements of RPAPL 1304. Wells Fargo Bank, N.A. v Smart, 2025 NY Slip Op 00476, Second Dept 1-29-25

Practice Point: The inclusion of additional information in the envelope containing the RPAPL 1304  90-day notice of foreclosure does not violate the “separate envelope” rule if the information is not misleading and may help the borrower avoid foreclosure.

 

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