Notice Compliance RPAPL 1304
This week we wanted to direct your attention to an interesting case and decision out of the Second Department which reinforced the importance of properly documenting compliance with the notice requirements set forth under RPAPL Section 1304 when commencing a foreclosure action. In denying a Plaintiff’s/Mortgagee’s motion for Summary judgment, the Court identified specific failures in the Plaintiff’s evidentiary submissions which derailed its efforts to foreclose on the mortgage notwithstanding the fact that Plaintiff might actually have followed its standard office mailing procedures.
The relevant facts of, as well as a link to, the case are set forth below.
In Bethpage Federal Credit Union v. Hernon, 2023 NY Slip Op 02638, decided May 17, 2023, the Supreme Court, Suffolk County, denied the foreclosing Plaintiff’s motion for summary judgment, holding that the Plaintiff had failed to establish that it had complied with the requirements of RPAPL Section 1304. The Appellate Division, Second Department, affirmed the lower court’s ruling. According to the Appellate Division, the affidavit submitted on behalf of the Plaintiff:
“was insufficient to establish that the RPAPL 1304 notices were properly mailed, because [the affiant’s] affidavit did not contain proof of the plaintiff’s standard office mailing procedure at the time the RPAPL 1304 notices allegedly were sent [citations omitted]. Although [the affiant] averred that loan records reflected that the plaintiff followed its standard practice with respect to mailing the RPAPL 1304 notices, those records were not attached to [the] affidavit, and as such, [the affiant’s] statements regarding them constitute inadmissible hearsay, lacking probative value [citations omitted]. Further, the plaintiff did not provide proof of the actual mailing, such as affidavits of mailing or domestic return receipts with attendant signatures.”
This decision is posted at https://www.nycourts.gov/reporter/3dseries/2023/2023_02638.htm
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