This BLOG has written extensively on a wide variety of issues in the area of mortgage foreclosure.[1] While we have not written about RPAPL 1304 in a while, it has been the subject of numerous articles in the past.[2] By way of brief background, and as has been previously discussed, the Second Department has stated that an “RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act (Real Property Law § 265-a), the underlying purpose of which is to afford greater protections to homeowners confronted with foreclosure.” Wells Fargo Bank, N.A. v. Yapkowitz, 199 A.D.3d 126, 131 (2nd Dep’t 2021) (some citations and internal quotation marks omitted; hyperlink added). The Yapkowitz Court continued, noting that “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 must give notice to the borrower.” Id. (citations and internal quotation marks omitted).
The failure of the “lender, assignee or mortgage loan servicer” to comply with RPAPL § 1304 will result in the dismissal of a foreclosure complaint (see, e.g., U.S. Bank N.A. v. Beymer, 161 A.D.3d 543, 544 (1st Dep’t 2018)) when the issue is raised by the borrower (see, e.g., One West Bank, FSB v. Rosenberg, 189 A.D.3d 1600, 1602-3 (2nd Dep’t 2020) (citation omitted)). A foreclosing lender must be in “strict compliance” with the requirements of RPAPL 1304. U.S. Bank Nat. Ass’n v. 22-23 Brookhaven, Inc., 219 A.D.3d 657, 664 (2nd Dep’t 2023). Indeed, “proper service of the notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action.” U.S. Bank N.A. v. Taormina, 187 A.D.3d 1095, 1096 (2nd7 Dep’t 2020) (citations omitted). Moreover, lender has the burden of establishing compliance with RPAPL 1304. BAC Home Loans Servicing, L.P. v. Chertov, 165 A.D.3d 1214, 1215 (2nd Dep’t 2018) (citations omitted).
In order to demonstrate compliance with requisite mailing of notices, Plaintiff must submit “proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, 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.” Wilmington Trust, N.A. v. Meyerhoeffer, 219 A.D.3d 549, 551 (2nd Dep’t 2023) (citations and internal quotation marks omitted); see also Ditech Servicing, LLC v. McFadden, 217 A.D.3d 923, 926 (2nd Dep’t 2023). Further, “[e]vidence of an established and regularly followed office procedure may give rise to a rebuttable presumption that such a notification was mailed to and received by the intended recipient.” Wilmington Trust, 219 A.D.3d. at 552 (citations, internal quotation marks, and brackets omitted). “In order for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the notice is always properly addressed and mailed.” Id. (citations, internal quotation marks, ellipses, and brackets omitted). In Wilmington Trust, the Court found the affidavit from the servicer’s employee to be insufficient because it “failed to specifically describe the procedures in place designed to ensure that … notices were properly addressed and mailed….” Id.
On August 3, 2025, the Appellate Division, Second Department, decided Wilmington Savings Fund Society, FSB v. Blum, a case involving the sufficiency of proof submitted on lender’s motion for summary judgment.[3] The lender in Wilmington Savings commenced an action to foreclose a mortgage and, subsequently, moved for summary judgment. The motion was denied because material issues of fact existed as to whether the lender complied with RPAPL 1304. There were questions as to the sufficiency of the business records submitted by the lender in its effort to establish compliance with RPAPL 1304.[4] In affirming the motion court’s denial of the lender’s motion,[5] the Court stated:
Here, the plaintiff relies on a contemporaneous affidavit of mailing of Michael Buscemi, among other things, to demonstrate its compliance with RPAPL 1304. Buscemi averred, in relevant part, that he sent copies of the subject 90-day notice to the defendant at the subject property via certified and first-class mail. However, Buscemi failed to aver to his employer, and the plaintiff failed to demonstrate, that Buscemi was somehow affiliated with the plaintiff’s counsel or otherwise authorized to send the 90-day notice on behalf of the plaintiff. The notices were sent in envelopes with a return address in California for the plaintiff. Accordingly, the Supreme Court properly determined that the plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304.
Because the lender failed to meet its burden of demonstrating compliance with RPAPL 1304, as opposed to the borrower demonstrating that the RPAPL 1304 notices were not served or were improperly served, the Court denied the motion for summary judgment, as opposed to dismissing the action. In so doing, the Court noted that “[s]ince the plaintiff failed to satisfy its prima facie burden with respect to its strict compliance with RPAPL 1304, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference were properly denied regardless of the sufficiency of the defendant’s opposition papers.” (Citation omitted.)
[1] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest to you.
[2] This BLOG has written numerous articles addressing RPAPL 1304. To find such articles, please see the BLOG tile on our website and type “1304” into the “search” bar.
[3] Editor’s Note: in the preparation of this article, the records of the underlying action available on the NYSCEF website were reviewed and relied upon.
[4] This BLOG has written numerous articles addressing business records as proof in mortgage foreclosure actions. To find such articles, please see the BLOG tile on our website and type “1304 business records” or “foreclosure business records” into the “search” bar.
[5] In the order from which the appeal was taken, the motion court noted that “the affidavit of service relating to the RPAPL 1304 Notice is made by “Michael Buscemi” who does not state for whom he is employed, but the affidavit appears to be notarized in Nassau County, however the envelope that the RPAPL 1304 Notice was mailed in bears a return address located in Seal Beach, California.
