In New
York, the Real Property Actions and
Proceedings Laws (RPAPL) §13041 set out stringent requirements for
a mortgage lender to properly notify a lender in default of an impending
foreclosure action. When the law was first passed, it only applied to mortgages
considered to be “subprime,” “high cost,” or otherwise “non-traditional.”
However, the state legislature amended the statute in 2010 to clarify that the
notice requirement was applicable to all foreclosure actions.
Some of the
requirements for pre-commencement notice to homeowners include the following:
·
The
notice must be sent at least 90 days prior to the filing of the foreclosure
action.
·
The
notice must be sent by both first-class mail and by either certified or
registered mail.
·
The
notice must provide the following statement in at least 14-point font: “YOU
COULD LOSE YOUR HOME. PLEASE READ THE FOLLOWING NOTICE CAREFULLY.”
·
The
notice must inform the owner of how many days they are in default and how much
will cure the default.
·
The
notice must advise homeowners who are struggling financially that there are
alternative options to foreclosure and must include a list of housing
counseling agencies approved by the New York government.
·
The
lender must notify the New York Superintendent of Banks within three days after
sending the notice to the homeowner in the mail.
Despite the
clear legal requirements set out for providing foreclosure notice, many
mortgage lenders fail to meet this notice requirement. In some cases, a lender
will claim compliance with notice requirements in the foreclosure complaint but
will fail to provide any proof that notice was provided or filed with the
Superintendent of Banks.
Cases
regarding failure to notify
New York
courts have been strictly enforcing RPAPL §1304 as demonstrated in several
cases. For example, in Aurora Loan Services LLC v. Weisblum, 85 A.D.3d 95, 103 [2 Dept. 2011], the court held that proper notice
was a “condition precedent” and that failure to provide proof of compliance
with the law required dismissal of the foreclosure case. In its decision, the
court made clear that simply alleging compliance was not enough to satisfy the
requirement, but that a lender would have to submit an affidavit of service in
order to fully comply with the law. New York courts have reaffirmed this decision,
holding that an affidavit of service was required in both Deutsche Bank v. Spanos, 102 A.D.3d 909, 961 N.Y.S.2d 200
(2d Dept. 2013)3 and in Wells Fargo Bank v. Burke,
125 A.D.3d 765,-- N.Y.S.2d--(2d Dept. 2015). Courts have required such strict
compliance that even producing a copy of a notice letter days more than 90 days
before the filing because there was no apparent date of mailing or postmark on
the notice. In that case,4 the court denied a
motion for summary judgment and dismissed the case.
A
qualified New York foreclosure lawyer can identify noncompliance with the law
If you are
facing foreclosure action, it is critical to have an
experienced Long Island foreclosure attorney handling your case who
can identify when a mortgage lender has not fully complied with the law. An
attorney can use such procedural defects to have the case dismissed and motions
for summary judgment denied. Though the mortgage lender may be able to refile
the case, they must provide at least 90 days of notice before filing again,
which gives you more time to figure out an alternative solution to the foreclosure.
Please do not delay in calling NY
foreclosure attorney
Ronald D. Weiss at 631-296-0912 for assistance
today.
References:
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