Prior to commencing a foreclosure action on owner-occupied property in New York State, a lender must serve a ninety (90) day notice in compliance with Real Property and Proceeding Law (“RPAPL”) § 1304. When contested, a plaintiff must demonstrate full compliance with the statute through admissible evidence and cannot proceed to judgment without doing so. Conversely, a defendant can dismiss a foreclosure action by proving that the bank failed to strictly adhere to RPAPL § 1304. Section 1304 is very specific as to the contents and method of serving of the 90-day notice. Additionally, banks must also comply with the state filing requirements of the notice pursuant to RPAPL § 1306.
On April 17, 2019 (10 days before my birthday), the Second Department addressed the evidence required to establish prima facie compliance with RPAPL § 1304. In Citibank, N.A. v. Conti-Scheurer, the Appellate Division reversed a Nassau County Supreme Court’s order granting plaintiff’s motion for summary judgment, finding that contrary to the lower court’s 2015 determination, the bank failed to establish compliance with RPAPL § 1304.
The Second Department found the bank’s documentary evidence to be deficient, that the bank’s affiant did not have personal knowledge of the purported 1304 mailing and that the bank’s agent failed to lay proper foundation of the alleged business records. The Court determined that “[s]ince the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304.” Consequently, the Appellate Division ruled that the Supreme Court should have denied the bank’s application for summary judgment.
While the bank failed to prove compliance with § 1304, the defendant also fell short on her cross-motion of establishing, prima facie, that plaintiff did not strictly comply with the mailing requirements. The Second Department declared that “mere denial” of receipt of the RPAPL 1304 notice is insufficient to warrant dismissal for noncompliance of the statute. Here, the defendant “did not confirm that she still lived at the address shown on the notice… that she had been receiving other mail at that address… that she was never contacted by the United States Post Office about mail for which she was required to sign….” The Court concluded that “a simple denial of receipt, without more, is insufficient to establish prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with the requirements of RPAPL 1304.” Accordingly, if you’re making a motion to dismiss for failure to comply with RPAPL § 1304, your affidavit must state more than just a mere denial of the receipt of the notice.
Compliance with RPAPL § 1304 should not be taken lightly. I’ve had several cases delayed and/or dismissed based on banks’ deficient records. Though the defendant in Citibank, N.A. v. Conti-Scheurer fell short on her motion to dismiss, she is in a much better bargaining position for settlement purposes now that the bank’s summary judgment has been reversed on a 10-year-old foreclosure action.