On Dec. 15, 2021, the Appellate Division, Second Department answered the open question of whether a lender may include information with an RPAPL 1304 90-day notice that is not mandated by the statute in the negative. In a decision that purports to be in accordance with the Legislature’s intent, the Second Department applied a strict compliance standard that is both unfeasible and unworkable. Even worse, the new rule, which makes the inclusion of any information that is not “expressly delineated” in RPAPL 1304 a violation of the statute, conflicts with other federal and state legislative edicts.

Most notably, the rule conflicts with the COVID-19 Emergency Eviction and Foreclosure Prevention Act’s (CEEFPA) requirement that lenders include hardship declarations with 90-day notices. The impact of the Appellate Division’s decision cannot be overstated. Hundreds, if not thousands of residential foreclosure actions could be subject to dismissal because of this opinion.

Background

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]