Foreclosure Defense · Procedure
RPAPL 1304 Notice Defense in New York
The 90-day notice is one of the most litigated requirements in New York foreclosure. The lender must prove it mailed the notice the way the statute demands. We review the bank’s proof of mailing — not just your copy of the notice.
Call (516) 750-0595What the statute requires
For a home loan, RPAPL 1304 requires a 90-day pre-foreclosure notice before the lender starts the case. The notice has to contain specific statutory language, be sent by certified (or registered) mail and separately by first-class mail, go to both the last known address and the property, and be sent in a separate envelope from any other mailing. Strict compliance is required, and proper service of the 1304 notice is a condition precedent the lender must plead and prove.
Where the proof breaks down
The fight is almost always about mailing proof. A lender proves mailing through an affidavit of someone with personal knowledge of the actual mailing, or through admissible evidence of a standard office mailing practice and procedure. A conclusory affidavit from an affiant who cannot establish either route is vulnerable. Our prior analysis of how a third-party vendor can prove mailing, and how strict the courts are about it, walks through the proof problems in detail:
- A good third-party vendor can prove mailing
- Mailing, again — strict RPAPL 1304 mailing requirements
- New York foreclosure defense: challenging RPAPL 1304 notice violations
What homeowners should look for
Did you receive a 90-day notice at all? Was it sent both certified and first-class? Was it in a separate envelope? Did it contain the required language and the housing-counseling agency list? Keep the envelopes. Then let a lawyer review the bank’s affidavits and business records, because that is where a defect usually shows.
A notice defect can be case-dispositive in rare cases. More often it creates leverage to delay, reopen, or negotiate. No outcome is guaranteed, and this page is general information, not legal advice.
Part of the broader Long Island foreclosure defense practice. If a sale or eviction date is scheduled, see our emergency foreclosure-stay page.
RPAPL 1304 FAQ
What does RPAPL 1304 require?+
For a home loan, New York Real Property Actions and Proceedings Law (RPAPL) 1304 requires the lender to send the borrower a 90-day pre-foreclosure notice before starting a foreclosure action. The notice must contain specific statutory language, must be sent by both registered or certified mail and separately by first-class mail to the borrower’s last known address and the property address, and must be sent in a separate envelope from any other mailing. Proper RPAPL 1304 notice is a condition precedent the lender must plead and prove.
Why does the bank’s proof of mailing matter so much?+
Because strict compliance with RPAPL 1304 is required, courts focus on whether the lender actually mailed the notice the way the statute demands — not just whether a copy of the notice exists. The lender typically proves mailing through an affidavit from someone with personal knowledge of the actual mailing, or through admissible evidence of a standard office mailing practice and procedure designed to ensure proper mailing. A generic affidavit from someone without personal knowledge, or one that does not establish the office procedure, can fail.
Can a foreclosure be dismissed for an RPAPL 1304 defect?+
It can happen. New York courts have dismissed foreclosure actions where the lender could not establish strict compliance with RPAPL 1304’s mailing requirements. Whether a defect helps in a particular case depends on the proof the lender offers, when the issue is raised, and the procedural posture. A 1304 problem can be case-dispositive in some situations and, more often, creates leverage to delay, reopen, or negotiate.
What is the difference between actual mailing and a standard office procedure?+
A lender can prove mailing either by an affidavit of someone who personally mailed the notice (actual mailing) or by evidence of a standardized office practice and procedure for ensuring items are properly addressed and mailed (the office-procedure route). The office-procedure route requires enough detail about the procedure to give rise to the inference that the notice was actually mailed. Courts scrutinize whether the affiant truly has knowledge of that procedure.
What should a homeowner look for in an RPAPL 1304 notice?+
Check whether you received the 90-day notice at all, whether it was sent both certified and by first-class mail, whether it was in a separate envelope, whether it contains the required statutory language and the list of housing counseling agencies, and the timing relative to the lawsuit. Keep the envelopes if you have them. Then have a lawyer review the bank’s proof of mailing — the affidavits and business records — because that is where defects usually appear.