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THE INCLUSION OF OTHER MATERIAL IN THE ENVELOPE CONTAINING THE RPAPL 1304 NOTICE IN THIS FORECLOSURE ACTION IS A DEFENSE WHICH CAN BE RAISED AT ANY TIME AND WHICH WARRANTED SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to comply with RPAPL 1304 is a defense to a foreclosure action which can be raised at any time. Here the inclusion of other material in the envelope containing the RPAPL 1304 warranted summary judgment in favor of defendants:

Although the defendants failed to oppose the plaintiff’s motion, inter alia, for summary judgment and for an order of reference on the ground that the plaintiff did not comply with RPAPL 1304, “failure 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” … . Here, the issue was raised before the entry of judgment of foreclosure and sale. Thus, the issue of compliance with RPAPL 1304 was properly before the Supreme Court.

The defendants established that the plaintiff failed to strictly comply with RPAPL 1304, on the ground that additional material was sent in the same envelope as the 90-day notice required by RPAPL 1304 … . Citimortgage, Inc. v Dente, 2021 NY Slip Op 07538, Second Dept 12-29-21

Similar issue and result in Wells Fargo Bank, N.A. v DeFeo, 2021 NY Slip Op 07577, Second Dept 12-29-21

 

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