Key Takeaway
NY foreclosure defense case shows defendants can challenge RPAPL 1304 notice violations even after summary judgment is granted, emphasizing strict compliance requirements.
Foreclosure proceedings in New York involve strict procedural requirements, and one of the most critical is compliance with RPAPL 1304, which mandates specific pre-foreclosure notices to borrowers. The Wells Fargo v. Merino case demonstrates an important principle: even when a lender obtains summary judgment, defendants may still challenge inadequate pre-foreclosure notices before final judgment is entered.
This case highlights the distinction between different phases of litigation. While summary judgment motions focus on the merits of claims, RPAPL 1304 compliance is a jurisdictional prerequisite that can be raised at various stages. The timing of procedural challenges in foreclosure cases can be complex, and defendants should understand their rights to contest procedural defects even after adverse rulings.
Jason Tenenbaum’s Analysis:
Wells Fargo Bank, N.A. v Merino, 2019 NY Slip Op 04655 (1st Dept. 2019)
“While defendant, who was initially pro se, raised the defense of plaintiff’s noncompliance with the strict requirements of RPAPL 1304 90-day pre-foreclosure notices in her answer, she did not raise it in her opposition to plaintiff’s motion for summary judgment, which was subsequently granted. This does not preclude her, however, from raising plaintiff’s noncompliance prior to entry of judgment of foreclosure and sale (Emigrant, 142 AD3d at 755-756).
Plaintiff failed to establish strict compliance with RPAPL 1304, a condition precedent to the commencement of a foreclosure action (see HSBC Bank USA v Rice, 155 AD3d 443 ). The affidavits submitted by plaintiff failed to demonstrate a familiarity with plaintiff’s mailing practices and procedures (HSBC Bank, 155 AD3d at 444), and they did not suffice as affidavits of service.”
This one is interesting. In one instance, Plaintiff received summary judgment. And after obtaining summary judgment, the defendant move to dismiss based upon violation of RPAPL 1304. Head scratching
Key Takeaway
The Merino decision reinforces that RPAPL 1304 compliance is a condition precedent to foreclosure actions that can be challenged even after summary judgment is granted. Lenders must provide proper affidavits demonstrating familiarity with their mailing procedures, and defendants retain the right to contest notice deficiencies before final judgment.
