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90 Day Notice Under RPAPL 1304 and 1306

There are many notice requirements to homeowners in foreclosure, but two in particular are considered a “condition precedent” so that if the notice is not given, the action must be dismissed.

Real Property and Proceeding Law (RPAPL) 1304: Notwithstanding any other provision of law, with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, such lender shall give notice to the borrower in at least fourteen-point type that they could lose their home. The notice must be send certified mail – RRR so that we can confirm it was done. It requires notice that,

“YOU COULD LOSE YOUR HOME. PLEASE READ THE FOLLOWING

NOTICE CAREFULLY”

“As of ..., your home loan is ... days in default. Under New York State Law, we are required to send you this notice to inform you that you are at risk of losing your home. You can cure this default by making the payment of ..... dollars by .....

If you are experiencing financial difficulty, you should know that there are several options available to you that may help you keep your home. Attached to this notice is a list of government approved housing counseling agencies in your area which provide free or very low-cost counseling. You should consider contacting one of these agencies immediately. These agencies specialize in helping homeowners who are facing financial difficulty. Housing counselors can help you assess your financial condition and work with us to explore the possibility of modifying your loan, establishing an easier payment plan for you, or even working out a period of loan forbearance. If you wish, you may also contact us directly at .......... and ask to discuss possible options.

While we cannot assure that a mutually agreeable resolution is possible, we encourage you to take immediate steps to try to achieve a resolution. The longer you wait, the fewer options you may have.

If this matter is not resolved within 90 days from the date this notice was mailed, we may commence legal action against you (or sooner if you cease to live in the dwelling as your primary residence.)”

Simultaneous with this, the lender must file a 90 day notice under RPAPL 1306 with the bank superintendent by electronic filing, which can also be confirmed.

The Court is constrained to dismiss any foreclosure action where the lender did not prove that they filed a 90 day notice to the property owner by certified mail or fail to electronically file notice with the Superintendent of Banks.

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