RPAPL 1304: The 90-Day Pre-Foreclosure Notice: Strict Compliance and Defenses

Before a lender can start a residential foreclosure lawsuit in New York, it must send the borrower a specific statutory warning letter at least ninety days in advance. That letter is governed by Real Property Actions and Proceedings Law (RPAPL) § 1304, and it is one of the most heavily litigated provisions in New York foreclosure practice. The reason is simple: New York courts require strict compliance with § 1304. A notice that is sent late, worded incorrectly, mailed the wrong way, or bundled with other material can defeat the entire foreclosure action, even where the borrower is undeniably in default.

This page explains what RPAPL 1304 actually requires, who is entitled to the notice, how lenders must prove compliance, and the specific defects borrowers can raise as defenses.

What RPAPL 1304 Requires in Plain Language

RPAPL § 1304(1) provides that with regard to a "home loan," at least ninety days before a lender, assignee, or mortgage loan servicer commences legal action against the borrower (including a mortgage foreclosure), it must give the borrower a written notice. The statute dictates nearly everything about that notice:

• The exact opening language. The notice must begin with the statutory warning, "YOU MAY BE AT RISK OF LOSING YOUR HOME," and must track the language set out in § 1304(1), including the number of days the loan is in default and the amount required to cure.
• Fourteen-point type. The notice must be printed in at least fourteen-point type.
• A housing counselor list. The notice must include a list of at least five housing counseling agencies serving the region where the borrower resides, with their last known addresses and telephone numbers, drawn from the list maintained by the Department of Financial Services.
• A separate envelope. Under § 1304(2), the notice must be sent "in a separate envelope from any other mailing or notice."

How the Notice Must Be Mailed

RPAPL § 1304(2) requires the notice to be sent both by registered or certified mail and by first-class mail, to the borrower's last known address and, if different, to the residence that is the subject of the mortgage. Notice is considered given as of the date it is mailed, not the date received. Sending by only one method, or to only one of the required addresses, is a fatal defect.

Under § 1304(4), only one 90-day notice needs to be sent in any twelve-month period to the same borrower for the same loan. If a foreclosure is dismissed and re-filed years later, however, courts frequently require a fresh notice because the original notice has gone stale and the default figures no longer reflect reality.

Who Is Entitled to the Notice: The "Home Loan" Definition

Section 1304 applies only to a "home loan" as defined in RPAPL § 1304(6)(a): a loan to a natural person, secured by a mortgage on residential real property in New York improved by a one-to-four family dwelling or a condominium unit, which the borrower uses or occupies (or intends to use or occupy) as his or her principal dwelling.

The statute also contains express carve-outs in § 1304(6)(b). The notice is not required where:

• The borrower has filed for bankruptcy and the automatic stay remains in effect; or
• The borrower no longer occupies the residence as a principal dwelling.

These exemptions generate their own litigation. Lenders bear the burden of proving an exemption applies; a bare allegation that the property is an investment property is not enough. Occupancy questions become especially complicated when the borrower has died before the action is commenced, a scenario with its own procedural rules, discussed in our guide to foreclosure of property owned by someone who died in New York City.

The Companion Filing: RPAPL 1306

RPAPL § 1306 requires the lender or servicer to file an electronic statement with the Superintendent of Financial Services within three business days of mailing the § 1304 notice. Like the notice itself, the § 1306 filing is a condition precedent to a residential foreclosure action, and the complaint must be accompanied by proof of the filing. In CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550 (2021), the Court of Appeals held that a § 1306 filing that lists only one borrower on a multi-borrower loan still satisfies the statute, but the failure to file at all, or to file on time, remains a viable defense.

Strict Compliance: Why Small Defects Have Big Consequences

Since Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95 (2d Dept. 2011), New York courts have held that proper service of an RPAPL 1304 notice is a condition precedent to the foreclosure action, and that "strict compliance" (not substantial compliance) is required. Practical consequences:

• The lender must affirmatively prove compliance to obtain summary judgment or a judgment of foreclosure and sale.
• A defective or unproven notice results in dismissal of the complaint (typically without prejudice), forcing the lender to start over with a new notice and a new 90-day wait.
• Because the defense goes to a condition precedent rather than personal jurisdiction, Second Department case law has permitted borrowers to raise it as late as opposition to summary judgment, even if it was not pleaded as an affirmative defense, though a defaulting defendant who never appears is on far weaker footing. Raising it early is always the safer course.

Proving the Mailing: The Schiffman Standard

The most common battleground is proof of mailing. In CIT Bank N.A. v. Schiffman, the Court of Appeals confirmed that a lender can establish the presumption that the notice was mailed in either of two ways:

1. Direct proof of the actual mailing: an affidavit from someone with personal knowledge who mailed the notices, supported by certified mail receipts and first-class mail records; or
2. Proof of a standard office mailing practice and procedure designed to ensure that items are properly addressed and mailed, described by an affiant with personal knowledge of that practice.

To rebut the presumption, a borrower must show a material deviation from the office practice, one that calls into question whether the notice was actually mailed. A minor, non-material deviation is not enough. In practice, lender affidavits fail when the affiant works for a servicer but describes a prior servicer's mailing practices without personal knowledge, when the affidavit recites conclusions without describing the actual procedure, or when the exhibits (certified mail numbers, copies of the envelopes, mailing logs) do not match the notices attached.

The "Separate Envelope" Rule After Kessler

For several years, courts dismissed foreclosures because the 90-day notice envelope also contained additional material, most commonly bankruptcy disclaimers or Fair Debt Collection Practices Act language. The Court of Appeals resolved the issue in Bank of America, N.A. v. Kessler, 39 N.Y.3d 317 (2023), holding that including accurate, non-misleading information that relates to the notice does not violate § 1304(2)'s separate-envelope requirement. Kessler significantly narrowed this defense, but it did not eliminate it: material that is false, misleading, or unrelated to the statutory purpose (or that obscures or contradicts the required warnings) can still render the notice defective. Pre-Kessler dismissals also remain relevant to statute-of-limitations calculations in re-filed actions.

Worked Examples

Example 1: Timing Defect

A servicer mails the § 1304 notice on March 1 and files the foreclosure summons and complaint on May 25, day 85. Even though the borrower is eleven months in default, the action was commenced before the ninety-day period elapsed. The complaint is subject to dismissal, and the lender must wait out a fresh notice period before re-filing.

Example 2: Mailing-Method Defect

A lender's affidavit attaches a certified mail receipt for the notice sent to the mortgaged premises, but the record contains no evidence of a first-class mailing and nothing sent to the borrower's separate last known address on file (the borrower had moved and updated the servicer). Under § 1304(2), the mailing is defective in two respects, and summary judgment for the lender should be denied.

Example 3: Wrong Cure Figures

The notice states the borrower is 120 days in default and must pay $9,400 to cure, but the servicer's own payment history shows the loan was 240 days past due with arrears exceeding $18,000 at mailing. Courts have found materially inaccurate default and cure figures inconsistent with strict compliance, because the statute's purpose is to give the borrower accurate information needed to avoid foreclosure.

Checklist of Borrower Defenses Under RPAPL 1304

• Notice never sent, or sent fewer than 90 days before commencement
• Notice sent by only one mailing method, or omitted a required address
• Notice not sent to each borrower who signed the note (each borrower must receive his or her own notice)
• Type size smaller than fourteen points, or statutory language altered or omitted
• Fewer than five housing counseling agencies listed, or agencies that do not serve the borrower's region
• Materially inaccurate default or cure amounts
• Envelope contents that are false or misleading (post-Kessler)
• Insufficient proof of mailing, no personal knowledge, no adequate description of office practice, mismatched exhibits
• No timely RPAPL 1306 filing with the Department of Financial Services

An RPAPL 1304 defense rarely eliminates the debt, but it buys leverage and time, often the critical window needed to negotiate a loan modification, pursue settlement conference relief under CPLR 3408, or refinance. For the broader strategy, see our overview of how to stop a foreclosure in New York.

Common Pitfalls for Lenders and Servicers

• Servicing transfers. The affiant proving the mailing must have personal knowledge of the mailing entity's practices, not just access to the loan file.
• Stale notices. Re-filing a dismissed action on a years-old notice invites a fresh strict-compliance challenge and complicates the statute of limitations. Where the limitations period has already run, the borrower may be able to extinguish the mortgage entirely through an RPAPL 1501(4) quiet title action.
• Multiple borrowers. Each signatory borrower must receive separate notices at each required address; proving one mailing does not prove them all.
• Sloppy record-keeping. Keep copies of the actual notices, envelopes, certified mail tracking, first-class mailing logs, and the § 1306 filing confirmation from day one. Foreclosures are won or lost on this paper trail years later.
• Notice of pendency coordination. Because a residential foreclosure requires a filed notice of pendency, defects in the § 1304 predicate can ripple into the validity of the lis pendens itself. See our page on how a notice of pendency on real property works in New York litigation.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].