For a qualifying New York home loan, the lender, loan owner or mortgage servicer generally must mail each borrower a specific RPAPL 1304 notice at least 90 days before starting a foreclosure case. The notice is a legal condition precedent: if the plaintiff cannot prove strict compliance, the foreclosure action may be dismissed. The notice is not an eviction notice, and receiving it does not mean a foreclosure lawsuit has already been filed.
What RPAPL 1304 does
Section 1304 of New York’s Real Property Actions and Proceedings Law (RPAPL) creates a pre-suit waiting period and consumer-warning process for covered home loans. Its purpose is to give a homeowner time to seek counseling, cure a default, negotiate with the servicer or obtain legal advice before a foreclosure complaint is filed.
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The statute’s required warning begins: “YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE CAREFULLY.” It also explains that the notice is not an eviction notice and that a foreclosure action has not yet been commenced. Those statements matter: the letter signals serious default consequences, but it is not itself a court paper ordering the homeowner to leave.
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RPAPL 1304 requirements at a glance
| Requirement | What the statute requires |
|---|---|
| Waiting period | The notice must be sent at least 90 days before the lender commences a foreclosure action. |
| Recipients | Each borrower must receive the notice at the mortgaged property address and at any other address of record. |
| Mailing classes | Registered or certified mail and first-class mail. |
| Envelope | The RPAPL 1304 notice must be mailed in a separate envelope from any other notice or mailing. |
| Typography | The notice must use at least 14-point type and contain the statutory warning and default language. |
| Counseling information | It must list at least five current housing-counseling agencies serving the county where the property is located. |
| Language access | When the borrower is known to have limited English proficiency, the notice must be in the borrower’s native or proficient language when that language is one of New York’s six qualifying most-common non-English languages. |
| When notice is given | For the statutory mailing requirement, notice is considered given when it is mailed. |
Who must receive the 90-day notice?
The duty is borrower-specific. A notice addressed jointly to two borrowers in one envelope is not enough under the 2026 decision in Nationstar Mtge., LLC v Dimura. Each borrower must receive a separately mailed notice. Bank of Am., N.A. v Keefer (2026) likewise addressed the failure to mail the required notices to both borrowers and emphasized the separate-envelope rule.
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Mailing to the mortgaged property is required, but it is not the only required destination. The lender or servicer must also use any other address of record for the borrower. A homeowner who moved, receives mail elsewhere or provided a correspondence address should preserve evidence of those addresses, because an address dispute can become central to a compliance challenge.
RPAPL 1304 is directed to the borrowers on the covered loan. It should not be confused with later papers that may be served on occupants, tenants or other parties in the property. Whether a particular loan is a covered “home loan,” and whether a particular person is a statutory borrower, can require reviewing the note, mortgage, payment history and occupancy facts.
How the notice must be mailed
Two mailing methods
The statute calls for both registered or certified mail and first-class mail. Sending only one class does not establish full compliance. The two required mailings must be made in a separate envelope from other communications, such as a default letter, payment demand or additional foreclosure notice.
Separate envelope for each borrower
The separate-envelope rule operates alongside the individual-recipient rule. A lender cannot combine two borrowers in one envelope and cannot place the RPAPL 1304 notice in an envelope containing unrelated notices. The mailing record should therefore identify the borrower, address, mailing class and date for each required mailing.
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Timing is measured before filing
The 90-day period runs before commencement of the foreclosure action. A complaint filed too early can be vulnerable even if the notice eventually reaches the homeowner. Because the statute treats notice as given when mailed, the mailing date and the date the action was commenced must be compared carefully.
What must appear in the notice
Statutory warning and default information
The notice must use the prescribed warning and explain the borrower’s default and the risk of foreclosure. It must be readable in at least 14-point type. A letter that contains general collection language but omits required statutory wording or formatting can create a compliance issue.
Free counseling contacts
The notice must include a current list of at least five housing-counseling agencies that serve the county where the property is located. This is intended to give the borrower practical, local help rather than a generic referral. Check the county and the date of the letter when assessing whether the list is responsive to the statute.
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For a borrower known to have limited English proficiency, New York requires the notice in the borrower’s native or proficient language when that language is among the six qualifying non-English languages identified by the state. A language-access question is fact-specific: the lender’s knowledge of the borrower’s language ability and the language used for prior communications may matter.
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How RPAPL 1304 fits with other foreclosure notices
| Notice or filing | Stage | Who receives or files it | Key content or action |
|---|---|---|---|
| RPAPL 1304 | Before the lawsuit | Each borrower at the property and other address of record | 90-day warning, statutory language, counseling list and required mailings |
| RPAPL 1303 | With the summons and complaint | Homeowner in an owner-occupied one-to-four-family foreclosure | Separate colored page, specified type sizes, and the statement “YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME.” |
| RPAPL 1306 | After the RPAPL 1304 mailing | Lender, assignee or servicer files electronically with the Superintendent of Financial Services | Required information must be filed within three business days after mailing; the complaint must contain the required allegation about that filing |
RPAPL 1303 is not a substitute for the 90-day notice. It accompanies the summons and complaint in the specified owner-occupied one-to-four-family case and tells the homeowner that leaving is not required at that time. It also explains that the owner must maintain the property and pay property taxes until a sale or a court-ordered removal.
RPAPL 1306 is a separate reporting step. It does not lengthen the 90-day period, but the lender’s complaint must allege that the required electronic filing was made. A missing or defective filing allegation can become another pleading issue in the case.
Exceptions and repeat notices
Bankruptcy or loss of principal-residence occupancy
The 90-day waiting period does not apply, or ceases to apply, if the borrower files bankruptcy or stops occupying the property as a principal dwelling. The notice obligation itself remains. These rules can be difficult to apply where occupancy changed during a long default, so the relevant dates should be documented rather than assumed.
One notice in a 12-month period
For the same loan and the same delinquency, a new RPAPL 1304 notice generally is required only once in a 12-month period. If the borrower cures the delinquency and later defaults again, the later default can trigger a new notice. Payment histories, written reinstatement confirmations and the dates of any cure are therefore important.
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What courts require as proof of mailing
In Wells Fargo Bank, N.A. v Palaigos (2025), the court rejected claimed compliance where the plaintiff lacked a receipt or other United States Postal Service document proving that certified mailing occurred more than 90 days before suit. A copy of the letter, standing alone, may not establish that the required mailing was actually made on time.
U.S. Bank Trust, N.A. v Atedgi (2025) describes several forms of evidence that can support mailing:
- An affidavit from a witness with knowledge of the mailing;
- A domestic return receipt bearing a signature; or
- A sworn description of the lender’s standard office mailing procedure from someone with personal knowledge of that procedure.
The evidence must connect the procedure or receipt to the particular borrower, address, mailing date and required mailing class. A generalized statement that notices are normally sent may be insufficient if the witness cannot explain how the individual notice was handled.
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A free scan shows the junk files, broken settings and background clutter dragging Windows down - then fixes them in one click.Free scan · Windows 10 & 11Nationstar Mtge., LLC v Ricks (2025) again treated strict compliance with RPAPL 1304 as a condition precedent and summarized the required addresses and mailing classes. These decisions make the litigation issue practical: the question is not merely whether a notice was generated, but whether the plaintiff can prove every required step.
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What happens if the lender cannot prove compliance?
Because RPAPL 1304 is a condition precedent, a plaintiff that cannot establish strict compliance risks dismissal of the foreclosure action. The court may examine the notice’s text and typography, the recipients and addresses, the mailing classes, the separate-envelope requirement, the date of mailing and the proof supporting each mailing.
Dismissal does not erase the underlying mortgage debt or permanently prevent a later action. A lender may be able to correct a defect and satisfy the statutory prerequisites before filing again, subject to the statute of limitations, bankruptcy rules, payment status and other defenses. A homeowner should not treat a possible notice defect as permission to ignore a summons, answer deadline or court conference.
Homeowner checklist after receiving a 90-day notice
- Keep every page and envelope. Photograph or scan the notice, both sides of the envelope and any postal markings. Do not discard certified-mail labels or tracking information.
- Record the dates. Note the mailing date shown on the envelope or postal record, the date you received it and any date stated for payment or legal action.
- Check the addressee. If there is more than one borrower, confirm that each borrower received an individually addressed mailing rather than a joint notice.
- Check the mailing package. Look for the registered or certified mailing and the first-class mailing, and determine whether the statutory notice was in its own envelope.
- Review the content. Confirm the 14-point presentation, required warning, county-specific list of at least five counseling agencies and any applicable language version.
- Collect address and occupancy records. Save evidence of the mortgaged-property address, other addresses of record, principal-residence occupancy, bankruptcy filings and any cure or reinstatement.
- Get advice promptly. Contact a New York foreclosure attorney, legal-aid provider or housing counselor. The New York Department of Financial Services provides official homeowner guidance and referral information.
Questions to raise with a lawyer or housing counselor
- Is the loan a covered New York “home loan,” based on the property, borrower and loan characteristics?
- Was the property your principal dwelling when the notice was mailed and when the action was filed?
- Did the lender mail a separate notice to every borrower at every required address?
- Can the plaintiff produce postal records, return receipts or a competent witness describing the standard mailing procedure?
- Was the action filed after the full statutory waiting period?
- Was there a bankruptcy, cure, reinstatement or prior RPAPL 1304 notice within the preceding 12 months?
- Does the foreclosure complaint allege the required RPAPL 1306 filing?
These questions do not determine validity by themselves. Applicability can turn on the loan documents, occupancy, borrower count, mailing history and the precise sequence of defaults and payments. If a summons and complaint has arrived, comply with the response deadline while counsel reviews the notice history.
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