What Is New York's 90-Day Foreclosure Notice? RPAPL 1304, Explained

What is the RPAPL 1304 notice?

The RPAPL 1304 notice is a written warning that New York Real Property Actions and Proceedings Law section 1304 requires a lender or servicer to send at least 90 days before starting a foreclosure lawsuit on a home loan. It is often called the 90-day notice or pre-foreclosure notice.

The notice must contain specific language set out in the statute, state the amount needed to cure the default, and include a list of at least five housing counseling agencies serving the borrower’s region. In plain terms, it is the law’s required warning shot. It marks the start of a 90-day window, not the end of anything.

How must the 90-day notice be delivered?

The statute is strict about delivery. The notice must be sent two ways at once, to the right addresses, in its own envelope:

• By registered or certified mail AND, separately, by first-class mail.
• To the borrower’s last known address and, if different, to the property address.
• In an envelope separate from any other mailing or notice.

These details matter. Proper service of the 1304 notice is a condition the lender must satisfy before suing, and whether the notice was mailed correctly is a live question in many New York foreclosure cases.

What does the 90-day clock actually start?

The 90 days are a waiting period before a lender can file suit, not a countdown to losing the home. During that window a homeowner can review the situation, gather documents, pursue loss mitigation or a loan modification, and speak with a housing counselor or an attorney. The clock is a runway, not a countdown to a fixed result.

What can a homeowner do during and after the 90 days?

Several things, and each is a place where the process can be examined rather than simply accepted:

• Review whether the lender actually holds the note and has standing to sue.
• Check whether the 1304 notice met the statute’s content and mailing requirements.
• Pursue loss mitigation: the window exists largely so borrowers can apply for a modification or other workout.
• Prepare for the mandatory settlement conference New York courts hold in residential foreclosure cases under CPLR 3408, where the parties must negotiate in good faith.

None of these steps guarantees a particular outcome. But the point most people miss is that receiving the notice does not decide the case. It starts a timeline governed by law, and a timeline can be worked.

Can a defective 1304 notice stop a foreclosure?

It can. New York courts treat proper 1304 notice as a condition precedent to a residential foreclosure action, and cases are dismissed when the lender cannot prove it complied. Compliance is fact-specific: in 2023, New York’s highest court held in Bank of America, N.A. v. Kessler that including certain additional information with the notice does not automatically void it, so whether a particular notice holds up requires a careful, case-by-case review of what was sent, how, and to whom.