Received the RPAPL 1304 90-Day Notice in New York? What It Means and How to Defend

If you received the RPAPL 1304 90-day notice in New York, here is what it means: the lender is required by statute to send you this specific 90-day pre-foreclosure notice before filing suit — and it must do so exactly as RPAPL § 1304 requires. New York courts treat strict compliance as a condition precedent to the lawsuit. If the lender cannot prove it sent a proper notice in the proper way, the case can be dismissed — making a defect in this notice one of the most powerful defenses a homeowner has.

What RPAPL 1304 requires

For a loan covered by the statute, the lender or servicer must send a notice at least 90 days before starting a foreclosure that does several specific things:

• Contains the exact statutory warning language telling you that you are at risk of losing your home, in at least 14-point type, in the format the statute prescribes.
• Lists approved housing counseling agencies near you that can help at no cost.
• Is sent separately from any other notice or mailing — courts have invalidated notices bundled with other documents.
• Is sent by first-class mail and also by registered or certified mail to your last known address and the property address.

Because the requirements are so specific, lenders get them wrong surprisingly often — the wrong format, the wrong mailing method, bundling the notice with other paper, or being unable to prove mailing at all.

Why a defect is so powerful

In New York, proper service of the § 1304 notice is a condition precedent — something the lender must satisfy before it can sue. That means a homeowner who shows the notice was missing or defective can defeat the foreclosure regardless of whether the underlying default is real. It is not a technicality the courts brush aside; it is a requirement the Legislature built specifically to protect homeowners, and appellate courts enforce it strictly.

RPAPL 1306 — the companion filing requirement

The statute has a partner: RPAPL § 1306. Within three business days of mailing the § 1304 notice, the lender must electronically file the required pre-foreclosure information (loan, borrower, and property details) with the New York Department of Financial Services (DFS). A failure to make the § 1306 filing — or to make it on time — is its own independent defense, separate from any § 1304 defect.

How to investigate your own notice

1. Find out whether you ever received a 90-day notice — and when. Check your files, your mail, and your memory of the months before the lawsuit.
2. If you have it, compare it against the statute's requirements: the exact warning language, the list of counseling agencies, and whether it came by itself or bundled with other documents.
3. Look for proof of certified and first-class mailing — the certified mail receipt or tracking, and the envelopes. Keep every envelope.
4. In the lawsuit, the lender must plead and prove compliance. In discovery you can demand the mailing proof and the § 1306 DFS filing confirmation.
5. Raise the defect as an affirmative defense in your Answer — and note that a § 1304 defect can also be a meritorious defense if you are moving to vacate a default.

Where this fits in your defense

A defective § 1304 notice is most often raised in your Answer as an affirmative defense, then pressed on a motion to dismiss or in opposition to the lender's motion for summary judgment. If a default judgment was already entered, a § 1304 defect is exactly the kind of potentially meritorious defense that supports a motion to vacate. Either way, it is one of the first things to check the moment a foreclosure begins.