In Real Property Actions and Proceedings Law [RPAPL] Section 1304, a pre-commencement notice to a borrower-homeowner is required to be served by registered or certified mail and also by first-class mail at least ninety days prior to commencement of the foreclosure action. Further, pursuant to RPAPL Section 1304, the pre-commencement notice must be sent by the lender or mortgage loan servicer. In the RPAPL Section 1306, the lender, assignee, or mortgage loan servicer has to file another notice with the Superintendent of Banks within three days of mailing the notice.
The Second Department held in Aurora Loan Services LLC v. Weisblum, 85 A.D.3d 95, 103 [2 Dept. 2011], that, “[P]roper service of the RPAPL Section 1304 notice containing the statutorily-mandated content is a condition precedent to the commencement of the foreclosure action. The plaintiff’s failure to show strict compliance requires dismissal.” Moreover, the Second Department stated in Aurora Loan Services LLC v. Weisblum, that the co-mortgagor (who signed the mortgage but not the note, as in this case) was deemed a “borrower” under RPAPL Section 1304 who was also entitled to receive the 90-day notice prior to the commencement of the action.
In Deutsche Bank National Trust Company v. Spanos, 102 A.D.3d 909 [2 Dept. 2013], further upheld its findings in the above Aurora Loan Services case, adding that a cross-motion for summary judgment dismissing the action should include proof that the plaintiff failed to comply with the statute.
Where there is a failure to comply with the above condition precedent, the court lacks subject matter jurisdiction over this action. Thus, the mortgage foreclosure proceeding should be dismissed in its entirety (and the cross-motion granted) based upon the Plaintiff’s complete and utter disregard of the requirements under RPAPL Section 1304 and lack of subject matter jurisdiction. See, Binkley v. O’Connor, 58 A.D.3d 834 [2 Dept. 2009].
— Richard A. Klass, Esq.