The Notice of Intention to Foreclose: New Jersey's Most Powerful Foreclosure Defense

If you are facing foreclosure in New Jersey, the most important piece of paper may be one the lender sent you before the lawsuit ever started: the Notice of Intention to Foreclose (NOI). New Jersey's Fair Foreclosure Act demands that this notice be sent — and be exactly correct — as a precondition to filing. When it is defective, courts have dismissed foreclosure complaints outright. It is, for many homeowners, the single strongest defense available.

What the law requires

Under N.J.S.A. 2A:50-56, a residential mortgage lender must give written notice of intention to foreclose at least 30 days before filing the complaint. It must be sent by registered or certified mail, return receipt requested, to your last known address. (Lenders commonly also send an ordinary first-class copy, but the statute itself requires only the registered-or-certified mailing.)

What the NOI must actually say

The statute lists specific content the NOI must contain. Missing or wrong items are where defenses are found. The NOI must state, among other things:

• the particular obligation or real-estate security interest and the nature of the default;
• the right to cure the default and the exact amount required to cure (principal, interest, and allowable fees) as of the date stated;
• the date by which you must cure to avoid the foreclosure filing;
• the name and address of the lender and the telephone number of a representative you can contact;
• that if you cure, you are reinstated and have the same standing as if no default occurred;
• that you have the right to seek counsel and may be eligible for legal-aid or financial assistance, with contact information; and
• the name and address of the lender, not merely the servicer, where the statute requires it.

Why a defect is so powerful: strict compliance

In U.S. Bank N.A. v. Guillaume, 209 N.J. 449 (2012), the New Jersey Supreme Court held that the Fair Foreclosure Act's NOI requirements are mandatory and that a notice failing to include statutorily-required information — there, the name and address of the actual lender — is defective. Courts have the discretion to dismiss the complaint without prejudice or to compel a corrected notice. Because the standard is strict compliance, a defective NOI is a strong defense — though under Guillaume the remedy is discretionary: courts often let the lender cure by reissuing a corrected notice rather than dismissing, so a defect does not guarantee dismissal.

How to check your own NOI

1. Find the letter you received before the lawsuit and confirm it is actually labeled a Notice of Intention to Foreclose.
2. Check the timing: was it sent at least 30 days before the complaint was filed? Compare the NOI date to the complaint's filing date.
3. Check the mailing method: was it sent by registered or certified mail, return receipt requested? (An ordinary first-class copy is common lender practice but is not itself a statutory requirement.) Keep the envelopes and any return receipts.
4. Go down the required-content list above and mark anything missing, blank, or wrong — especially the cure amount, the cure date, and the lender's (not just the servicer's) name and address.
5. Raise any defect as an affirmative defense in your Answer and preserve all documents.