RPAPL 1304 Requirements: NY’s 90-Day Notice, Mailing, and Defects

The RPAPL 1304 90-day notice is a written warning that a mortgage lender, assignee, or servicer in New York must send you at least 90 days before filing a foreclosure lawsuit on your home loan. The statute dictates the exact language, the font size, the envelope, the mailing methods, and the list of housing counseling agencies that has to come with it. If the lender gets any of it wrong, New York courts can dismiss the foreclosure outright, because full compliance is a condition precedent to suing you.1Justia Law. Aurora Loan Servs LLC v Weisblum

The law covers “home loans” — debt secured by property the borrower uses, or intends to use, as a principal dwelling, incurred primarily for personal, family, or household purposes.2New York State Senate. New York Real Property Actions and Proceedings Law 1304 – Required Prior Notices Investment properties and commercial loans fall outside the statute entirely.3Department of Financial Services. FAQ Pre-Foreclosure Information Form and Section 1306 of RPAPL The obligation travels with the loan, so a new servicer or assignee inherits it in full.

What a Valid 90-Day Notice Has to Contain

The statute gives lenders no room to paraphrase. The notice must open with the heading “YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE CAREFULLY,” and must tell you how many days and how many dollars the loan is in default.2New York State Senate. New York Real Property Actions and Proceedings Law 1304 – Required Prior Notices The body of the notice has to include:

  • A reference to the Attorney General’s Homeowner Protection Program hotline at 1-855-HOME-456 and the DFS website for a statewide list of counseling agencies.
  • A phone number or address where you can reach the lender or servicer to discuss workout options.
  • A statement that if you take no action within 90 days of the mailing date, the lender may commence legal action.
  • A clear statement that you have the right to stay in the home until a court orders otherwise and that the notice is not an eviction notice.

All of that text must be printed in at least 14-point type.4New York State Senate. Real Property Actions and Proceedings Code 1304 – Required Prior Notices Reverse mortgages get a parallel notice under subdivision 1-a, with a 16-point heading and language geared to reverse-mortgage defaults like unpaid taxes, lapsed insurance, or non-occupancy.

Attached to the notice must be a list of at least five housing counseling agencies serving the county where the property sits, pulled from the current DFS directory. If the lender knows you have limited English proficiency and your language is one of the six most common non-English languages spoken by limited-English-proficiency New Yorkers in Census data, the notice has to be in that language, and DFS publishes translated versions for lenders to use.4New York State Senate. Real Property Actions and Proceedings Code 1304 – Required Prior Notices

How the Notice Has to Be Mailed

RPAPL 1304 requires a dual mailing. The notice must go out by registered or certified mail and separately by first-class mail, with both copies sent to your last known address and to the property that secures the mortgage.2New York State Senate. New York Real Property Actions and Proceedings Law 1304 – Required Prior Notices Certified mail builds a paper trail; first-class mail has a better chance of actually reaching someone who wouldn’t sign for a certified letter.

The notice has to travel in its own envelope. A lender cannot bundle it with a monthly statement, a demand letter, or any other correspondence.2New York State Senate. New York Real Property Actions and Proceedings Law 1304 – Required Prior Notices The legislature added that separate-envelope rule in 2009 so the warning wouldn’t disappear into a stack of routine paperwork, and courts enforce it strictly.

Each borrower who signed the mortgage must get their own notice in their own envelope. A single joint notice to two spouses does not satisfy the statute, and lenders miss this often enough that it has been the basis for dismissal in multiple cases. If you’ve moved and given the servicer a forwarding address, the notice has to go to that address too.

When the 90 Days Start, and How Federal Law Stacks

The 90-day clock runs from the date the notice is mailed, not the date you receive it.4New York State Senate. Real Property Actions and Proceedings Code 1304 – Required Prior Notices A week spent out of town eats into your window.

Separately, under the Consumer Financial Protection Bureau’s Regulation X, a servicer generally cannot make the first filing in a foreclosure until the borrower is more than 120 days delinquent on the loan.5Consumer Financial Protection Bureau. 12 CFR 1024.41 Loss Mitigation Procedures This federal floor runs alongside the state 90-day rule rather than replacing it. If the federal 120 days haven’t run when your 90 state days end, the servicer still has to wait. In practice, a New York borrower usually gets well over 90 days of breathing room between the first missed payment and the first court filing.

One line in the notice does cut the other way: the lender may file sooner than 90 days if you stop living in the property as your primary residence.2New York State Senate. New York Real Property Actions and Proceedings Law 1304 – Required Prior Notices Moving out during the window can accelerate everything.

What to Do in the 90 Days

Ignoring the notice is the worst option. Your choices shrink as the window closes.

  • Call a housing counselor right away. The notice lists agencies, and the Attorney General’s HOPP hotline at 1-855-466-3456 connects you with free counselors trained in foreclosure prevention.
  • Contact the servicer at the number on the notice and ask about loss mitigation options like a loan modification, forbearance, or repayment plan. Nothing is guaranteed, but federal servicing rules require the company to evaluate you.
  • Talk to a lawyer. Legal aid organizations across New York handle foreclosure defense at no cost, and an attorney can look at whether the notice itself complies with RPAPL 1304.
  • Stay in the home. The notice says plainly that you have the right to remain until a court orders otherwise. It is not an eviction notice.

Defective Notices and Dismissal

The reason the details matter so much is that New York courts treat RPAPL 1304 compliance as a condition precedent to filing a foreclosure action. The lender carries the burden of proving every element, and the standard is strict compliance rather than substantial compliance.1Justia Law. Aurora Loan Servs LLC v Weisblum The Appellate Division set that rule in Aurora Loan Services v. Weisblum, holding that defective service or missing content requires dismissal. The Court of Appeals later reinforced the procedural stakes in CIT Bank, N.A. v. Schiffman, examining how the 1304 notice interacts with a separate electronic filing requirement under RPAPL 1306.6vLex United States. CIT Bank NA v Schiffman

Common defects that have sunk foreclosures include wrong font size, a short or stale counseling-agency list, the notice tucked into the same envelope as another document, a single joint notice to two borrowers, or weak proof of mailing. On that last point, lenders can prove mailing either with direct evidence like a certified mail receipt and an affidavit from the person who sent it, or through testimony about standard office procedures — but that testimony has to come from someone with personal knowledge of those procedures. A generic affidavit from an executive uninvolved in the mailing has been found insufficient, and one lender’s case was dismissed on that basis even though copies of the notices themselves were produced.

A dismissal for non-compliance is usually without prejudice, so the lender can re-mail a corrected notice and start the 90 days over. That still buys you months and real leverage. If you suspect a defect, raise it with a lawyer before answering the complaint.

The 1304 notice is also linked to a separate filing the servicer must make with the Superintendent of Financial Services within three business days under RPAPL 1306, and the foreclosure complaint must allege that filing was done.7New York State Senate. New York Real Property Actions and Proceedings Law 1306 – Filing With Superintendent A missed or late 1306 filing is another defense worth checking.

After the 90 Days: The Settlement Conference

If the lender does file suit, New York gives you another layer of protection. Under CPLR 3408, the court must hold a mandatory settlement conference within 60 days after the lender files proof that you were served.8New York State Senate. New York Laws CVP – Civil Practice Law and Rules Article 34 – Rule 3408 The point is to see whether the parties can reach a resolution that keeps you in the home, through a loan modification, short sale, deed in lieu, or similar arrangement. Both sides must send someone with full authority to settle.

If you appear without a lawyer, the court must explain the nature of the action and your rights, and a pro se defendant at the initial conference is automatically treated as having requested permission to proceed as a poor person, which can lead to appointed counsel.8New York State Senate. New York Laws CVP – Civil Practice Law and Rules Article 34 – Rule 3408 The court will also hand your contact information to a designated housing counseling agency so a counselor can reach out. A lot of foreclosure cases settle at this stage. Showing up matters.