Can the 90 Day Pre-foreclosure Notices be mailed to the Borrowers by Counsel for the Lender
Pursuant to RPAPL §1304 (1) At least 90 days before a lender, assignee or mortgage servicer commences a foreclosure action concerning a “home loan”, the lender, assignee or servicer shall giver the Borrower the notice required pursuant to the statute, which is commonly referred to as the 90 day Notices.
Subdivision 2 of the Statute specifically provides that “the notices required by this section shall be sent by such lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage…”
While the statute does not specifically grant the authorization to counsel for the lender, assignee or mortgage servicer to sent the 90 day notices, the NYS Courts have ruled that counsel could send the notices.
In Flagstar Bank, FSB v. Mendoza, 139 AD3d 898, 32 NYS3d 278 (2nd Dept. 2016), the
Appellate Court held that RPAPL §1304 does not preclude an attorney acting on behalf of the lender from sending the 90 day notices.
In order to prove compliance with the statute, counsel must prove proof of the actual mailing day notices. In Ventures Trust 2013-I-H-R By MCM Capital Partners, LLC v. Williams, 184 Ad3d 893, 127 NYS3d 36 (2 nd Dept 2020), the Court held that “the unsubstantiated and conclusory statement of the plaintiff’s attorney in an affidavit submitted in support of the motion that RPAPL 1304 notice was properly mailed to the defendant is insufficient to establish compliance with the statute as a matter of law.” Citing Central Mortgage Co. v. Abraham, 150 AD3d 961, 55 NYS3d
336; Citibank, NA v. Wood, 150 Ad 3d at 814, 55 NYS3d 109).
In the Flagstar Bank, FSB v. Mendoza case, the Court found that the Plaintiff had established compliance with the statute regarding the mailing of the 90 day notices where the attorney submitted an affidavit, which described the firm’s standard business practice with regard to sending the notices to borrowers, and affirmed based upon the review of the business records pertaining to the subject loan, that the notices were sent in compliance with the statute and the plaintiff submitted copies of the notices, domestic return receipts, with date of delivery and signature of one of the borrowers.
Contact the Law Office of Ronald D. Weiss, P.C.
EMAIL OR CALL FOR A FREE CONSULTATION:
📞 : 631-223-4810
🌎 : https://www.ny-bankruptcy.com/
- HOURS OF OPERATION
- Monday – Friday – 8:30 AM – 8:30 PM
- Saturday – Sunday – 10 AM – 6 PM
- We Work Longer And Harder To Give Our Clients’ The Edge, Advantages And Options That Make A Difference.
- Brooklyn Branch Office Location
- 26 Court Street, Suite 2206 Brooklyn
- (347)-508-9316
BY APPOINTMENT ONLY
NY 11242
- Queens Branch Office Location
- 118-35 Queens Blvd Tower, Suite 400 Queens
- (718)-751-0226
BY APPOINTMENT ONLY
NY 11375
- Mineola Branch Office Location
- 34 Willis Ave. Mineola,
- (516) 858-3003
BY APPOINTMENT ONLY
NY 11501
- Rockville Centre Branch Office Location
- 41 N Village Ave, Rockville Centre,
- (516) 858-3003
BY APPOINTMENT ONLY
NY 1157
- Riverhead Branch Office Location
- 30 W Main St, Riverhead,
- (631) 456-4420
BY APPOINTMENT ONLY
NY 11901
- Amityville Branch Office Location
- 166 Broadway Amityville,
- (631) 618-0010
BY APPOINTMENT ONLY
NY 11701
- Freeport Branch Office Location
- 42 Guy Lombardo Ave #210C, Freeport,
- (516) 858-3003
BY APPOINTMENT ONLY
NY 11520
- Southampton Branch Office Location
- 33 Flying Point Rd, Suite 131, Southampton,
- 631-823-7182
BY APPOINTMENT ONLY
NY 11968
- Fresh Meadows Branch Office Location
- 61-43 186th St, Fresh Meadows,
- (718) 751-0226
BY APPOINTMENT ONLY
NY 11365
- Floral Park Branch Office Location
- 99 Tulip Ave Suite 408, Floral Park,
- (718) 751-0226
BY APPOINTMENT ONLY
Comments
Post a Comment