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RPAPL 1304 REQUIRES THAT THE NOTICE OF FORECLOSURE BE MAILED SEPARATELY TO EACH BORROWER; HERE THE NOTICE WAS SENT TO BOTH BORROWERS IN A SINGLE ENVELOPE; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank did not prove its “strict compliance” with the notice of foreclosure provisions of RPAPL 1304:

RPAPL 1304 requires that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer give notice to the borrower. The statute prescribes the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower … . “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … , “and the plaintiff has the burden of establishing satisfaction of this condition” … . “[T]he mailing of a 90-day notice jointly addressed to two or more borrowers in a single envelope is not sufficient to satisfy the requirements of RPAPL 1304, and . . . the plaintiff must separately mail a 90-day notice to each borrower as a condition precedent to commencing the foreclosure action” … .

Here, in support of its motion, among other things, for summary judgment on the complaint insofar as asserted against Esther, Wilmington failed to establish strict compliance with RPAPL 1304. Although the RPAPL 1304 notice was mailed to the borrowers by both certified and first-class mail, Wilmington failed to establish that Wells Fargo sent a 90-day notice individually addressed to each borrower in a separate envelope, as required by the statute … . Instead, as 1900 Capital concedes, the RPAPL 1304 notice was not mailed individually, in a separate envelope, to Esther. Rather, the envelope purportedly providing the RPAPL 1304 notice to Esther was jointly addressed to her and Marvin in one envelope. This was insufficient to establish compliance with RPAPL 1304 … . Wells Fargo Bank, N.A. v Welz, 2025 NY Slip Op 03355, Second Dept 6-4-25

Practice Point: The “notice of foreclosure” provisions in RPAPL 1304 must be strictly complied with. Here the bank mailed the notice to both borrowers in a single envelope. The statute requires separate mailings to each borrower. Therefore the bank was not entitled to summary judgment.

 

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