Protect Your Home: Understanding New York’s RPAPL 1304 Pre-Foreclosure Notice Requirements
If you’re facing mortgage difficulties in New York, understanding your legal protections is crucial. One of the most important safeguards homeowners have is the requirement that lenders provide at least ninety days’ notice before commencing legal action against borrowers, including foreclosure proceedings. This protection comes from Real Property Actions and Proceedings Law (RPAPL) Section 1304, commonly known as the “90-day notice” requirement.
What is RPAPL 1304?
RPAPL 1304 requires that a pre-foreclosure notice be sent, at least 90 days before the lender commences legal action against the borrower, to all borrowers with home loans. This law was originally enacted in 2008 during the Great Recession and was expanded in 2009 to protect all homeowners, not just those with high-cost or subprime loans.
Under New York State Law, lenders are required to send borrowers notice to inform them that they are at risk of losing their home, with an attached list of government approved housing counseling agencies in the area which provide free counseling. This notice serves as an early warning system, giving homeowners time to explore their options before facing a Foreclosure Complaint.
Strict Requirements for Compliance
The law has very specific requirements that lenders must follow exactly. Strict compliance with RPAPL 1304 is a condition precedent to the commencement of a foreclosure action and a lender’s failure to comply with RPAPL 1304 will result in the dismissal of a foreclosure complaint.
Key requirements include:
- Notice must be in at least fourteen-point type
- Notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage
- Notices must be sent in a separate envelope from any other mailing or notice
- The notice must contain proper wording and attach a list of at least five housing counselors
Individual Notice Requirements
Recent court decisions have made compliance even stricter. The Appellate Division, Second Department, held that a 90-Day notice mailed jointly to two or more borrowers, is insufficient to satisfy the requirements of RPAPL 1304. Since RPAPL 1304 requires “notice to the borrower” and not borrowers, strict reading of the statute requires notice to each borrower individually.
This means if you’re married or have co-borrowers, each person must receive their own separate notice for the requirement to be satisfied.
What the Notice Must Say
The statute mandates specific language that must be included in the notice. The notice must include: “YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE CAREFULLY” “As of ___, your home loan is ___ days and ___ dollars in default. Under New York State Law, we are required to send you this notice to inform you that you are at risk of losing your home”.
The notice must also warn that “If you have not taken any actions to resolve this matter within 90 days from the date this notice was mailed, we may commence legal action against you (or sooner if you cease to live in the dwelling as your primary residence.)”
Your Rights Under the Notice
Importantly, the notice must inform homeowners of their rights. It must state: “IMPORTANT: You have the right to remain in your home until you receive a court order telling you to leave the property. If a foreclosure action is filed against you in court, you still have the right to remain in the home until a court orders you to leave”.
The notice must also clarify that “This notice is not an eviction notice, and a foreclosure action has not yet been commenced against you”.
Recent Legal Developments
In February 2023, the New York State Court of Appeals issued a decision in Bank of America, N.A. v. Kessler, which will greatly impact many residential mortgage foreclosure actions in New York. This decision addressed the “separate envelope” requirement and whether additional consumer protection notices could be included with the RPAPL 1304 notice.
The Court of Appeals’ decision is a relief to the mortgage industry which has been beset by new restrictions and laws that jeopardize the enforceability of mortgages in New York State.
Why Professional Help Matters
Given the complexity and strict requirements of RPAPL 1304, homeowners facing foreclosure need experienced legal representation. Working with veteran attorneys with many years of combined legal experience and over 30 legal professionals on the team provides the resources to handle important legal matters.
A personalized approach specific to your situation and goals, combined with free initial consultation, allows homeowners to explore their options for bankruptcy, foreclosure defense, and debt relief.
Take Action Now
If you’ve received an RPAPL 1304 notice, don’t wait. While lenders cannot assure that a mutually agreeable resolution is possible, homeowners are encouraged to take immediate steps to try to achieve a resolution. The longer you wait, the fewer options you may have.
With offices centrally located for easy access throughout Long Island, experienced foreclosure defense attorneys can help you understand your rights, challenge improper notices, and explore all available options to save your home. Remember, proper compliance with RPAPL 1304 is not optional for lenders – it’s a strict legal requirement that, when violated, can result in dismissal of their case.