Mailing, again

Strict Mailing Requirements Continue to Challenge Mortgage Lenders

New York’s Real Property Actions and Proceedings Law (RPAPL) Section 1304 requires mortgage lenders to provide borrowers with specific pre-foreclosure notices, but proving proper mailing has become increasingly complex. The statute mandates that 90-day notices be sent by both certified mail and first-class mail, creating a dual requirement that many lenders struggle to satisfy in court.

The Second Department’s recent decision in M&T Bank v. Biordi demonstrates how courts are maintaining strict standards for proving compliance with these mailing requirements. This case highlights the ongoing evolution of mailing-related litigation, which has expanded from lower court disputes to significant appellate-level decisions. As with other areas of procedural law, the devil is in the details when it comes to certified mail and regular mail requirements.

Jason Tenenbaum’s Analysis:

M&T Bank v Biordi, 2019 NY Slip Op 07775 (2d Dept. 2019)

The irony – and I have commented on this before – is that the great Appellate Term mailing debates have transitioned to Appellate Division mailing debates as RPAPL 1304 has spawned an incredible amount of litigation in the mortgage context.

“Attached to the affidavit were copies of 90-day notices, bearing indicia of mailing by certified mail, but not first-class mail, and bearing no postmark or date of mailing. The plaintiff additionally submitted an affidavit of mailing of an Assistant Treasurer/Manager of Hudson City, who attested to the mailing of 90-day notices by first-class and certified mail, but did not attest to personal knowledge of the mailing and did not set forth any details regarding Hudson City’s mailing practices or procedures. Since the plaintiff failed to provide evidence of the actual mailing, or evidence 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 “

Key Takeaway

Courts require mortgage lenders to provide comprehensive evidence of proper mailing procedures, including both certified and first-class mail compliance. Generic affidavits without personal knowledge or detailed mailing procedures are insufficient to establish RPAPL 1304 compliance, potentially derailing foreclosure proceedings.

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