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.
Frequently Asked Questions
Does the 90-day notice mean I am already in foreclosure?
No. It is a pre-lawsuit notice required before a lender can file. Foreclosure is a court process that would begin only after the notice period, and only if the lender files and serves a lawsuit.
Does RPAPL 1304 apply to every mortgage?
It applies to home loans as the statute defines them, generally loans to individuals secured by property they occupy as a principal residence in New York. Whether a particular loan qualifies is one of the first things to review.
What happens after the 90 days end?
The lender may then file a foreclosure lawsuit. In New York, residential cases include a court-supervised settlement conference under CPLR 3408 where modification and other resolutions are discussed. The process has multiple stages, each governed by law.
Can I still apply for a loan modification during the 90 days?
Yes. The window exists largely for that purpose. Applying early, in writing, and keeping copies of everything you submit puts you in the strongest position.
Can the notice itself be challenged?
Yes. Whether an RPAPL 1304 notice contained the required content and was mailed the way the statute demands comes up frequently in New York foreclosure matters, and a defective notice can lead to dismissal of the case.