HERE THE BORROWER DIED AND DEFENDANT INHERITED THE PROPERTY SUBJECT TO THE BORROWER’S MORTGAGE; THE BANK’S FAILURE TO COMPLY WITH THE NOTICE OF FORECLOSURE REQUIRMENTS IN RPAPL 1304 IS A DEFENSE WHICH IS PERSONAL TO THE BORROWER; IT IS NOT AVAILABLE TO THE DEFENDANT, A “STRANGER TO THE NOTE AND MORTGAGE” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank’s failure to comply with RPAP 1304 (notice of foreclosure) is a personal defense to the borrower and does not apply to a stranger to the note and mortgage. Here the borrower died and defendant inherited the property:

Supreme Court should have granted plaintiff’s motion for summary judgment and an order of reference because defendant lacks standing to raise a defense based on plaintiff’s failure to comply with RPAPL 1304. Plaintiff does not dispute that the loan was a home loan subject to the statute and that, therefore, Wells Fargo needed to comply with it as a condition precedent to bringing this action. However, “[n]oncompliance with RPAPL 1304 . . . in a mortgage agreement [is a] personal defense[] that may not be raised by parties who are strangers to the subject note and mortgage” … . Here, once plaintiff discontinued the action as against the father’s estate, the case continued against defendant solely in his individual capacity as current owner of the property. Even though defendant remains an obligor in the sense that he acquired the property subject to his father’s mortgage, he is no different from any other transferee of property subject to a mortgage, and thus he is a stranger to the note and mortgage instruments and lacks standing to raise an RPAPL 1304 defense, which is personal to the borrower … . Wilmington Sav. Fund Socy. v Lopez, 2026 NY Slip Op 06037, First Dept 10-15-26

Practice Point: A bank’s failure to comply with the notice of foreclosure requirements in RPAPL 1304 is a defense which is personal to the borrower. Here the defense could not be raised by defendant who inherited the property from the borrower. Defendant was a “stranger to the note and mortgage.”