This page explains New York law. The 90-day notice in Real Property Actions and Proceedings Law (RPAPL) 1304 is strict and technical, and because the statute ties it to the start of the case, it has to be completed before the case is filed. For an overview of how KOR Law LLP approaches residential foreclosures, see our foreclosure defense practice. For what happens once the summons actually arrives, see the New York foreclosure process after a summons.
Who is entitled to the notice?
The notice protects borrowers on a "home loan." RPAPL 1304(6) defines that as a loan where the borrower is a natural person, the debt was taken on primarily for personal, family or household purposes, the loan is secured by a one to four family home or a condominium unit that is or will be the borrower's principal dwelling, and the property is in New York. The definition expressly includes an open-end credit plan that meets the same tests. Reverse mortgages that meet the same tests are covered by a separate form of notice with its own wording (RPAPL 1304(1-a)).
Because the definition starts with a natural person borrowing for household purposes, lenders often argue that a loan made to an LLC, or for an investment property, falls outside RPAPL 1304. Whether a particular loan qualifies depends on its facts. Our article The LLC Trap looks at homes held through an entity. The protections on each track are compared in commercial or residential foreclosure in New York.
What must the notice say and how must it be sent?
| Requirement | What the statute says |
|---|---|
| Who sends it | The lender, an assignee (including a purchasing investor) or the mortgage loan servicer (1304(1), (2)) |
| Timing | At least 90 days before the lender, assignee or servicer commences legal action, including foreclosure (1304(1)) |
| Type size | At least 14-point type (1304(1)) |
| Heading | "YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE CAREFULLY" (1304(1)) |
| Contents | How many days and dollars the loan is in default, free housing counseling resources, the state Department of Financial Services helpline, and a statement that the borrower may remain in the home until a court orders otherwise (1304(1)) |
| Counseling list | A current list of at least five housing counseling agencies serving the county where the property is located, with addresses and phone numbers, from the Department of Financial Services listing (1304(2)) |
| Mailing method | Registered or certified mail and also first-class mail (1304(2)) |
| Addresses | The borrower's last known address and the residence that secures the mortgage (1304(2)) |
| Envelope | A separate envelope from any other mailing or notice (1304(2)) |
| Date given | Notice is considered given on the date it is mailed (1304(2)) |
| Language | For a borrower known to have limited English proficiency, in the borrower's native language if it is one of the six most common non-English languages in New York (1304(5)) |
| State filing | Information about the notice filed with the Superintendent of Financial Services within three business days of mailing (1306(1)) |
The court system's CourtHelp page summarizes the same notice for homeowners: it states the number of days in default, the amount needed to catch up, the lender's phone number, at least five nonprofit counseling groups, the state helpline, and that a foreclosure case may follow if the matter is not resolved within 90 days. The statutory text also points borrowers to the Attorney General's Homeowner Protection Program hotline for free counseling, and warns about companies or people who charge for those services.
The 90 days are meant to be used. The notice itself says the longer you wait, the fewer options you may have, and it invites the borrower to contact the lender to discuss options. If a workout is still pending when a case is filed, the court process has its own rules for it; see whether you can still get a loan modification after the case starts.
What does the state filing add?
RPAPL 1306 adds a second step that is easy to miss. Within three business days of mailing the 90-day notice, the lender, assignee or servicer must file information with the Superintendent of Financial Services electronically, including at a minimum the borrower's name, address and last known phone number and the amount claimed as due (RPAPL 1306(1), (2)). The state uses that information to track foreclosure filings and to direct counseling and foreclosure prevention services to borrowers at risk, and it may share it with designated housing counseling agencies (RPAPL 1306(4)). Any foreclosure complaint must then affirmatively allege, as a condition precedent, that the plaintiff complied with this filing rule when the case began (RPAPL 1306(1)).
What happens if the lender got it wrong?
Because the notice is a condition precedent, a lender that sues without proper notice has not met a requirement the statute sets for bringing the case at all. The court system's list of common foreclosure defenses describes when to raise this one: if you did not get the notice at all, if you did not get two copies of it, or if the plaintiff started the case before the 90 days were up, and it advises saying exactly what was wrong.
These disputes often turn on proof of mailing: whether the plaintiff can show that both the certified or registered mailing and the first-class mailing actually went out, to the right addresses, on a date at least 90 days before the case began, in an envelope containing nothing else. That is why the envelopes matter as much as the letter. Raise the defense in the answer and state the specific defect; the rules on which defenses must appear in the answer are covered in how long you have to answer a foreclosure complaint in New York.
A notice problem is separate from the question of whether the plaintiff owns the loan at all. That is a standing defense, which we explain in whether a New York foreclosure can be dismissed because the lender lacked standing.
What changes the answer for your case?
- Whether the loan is a "home loan." The notice is required only for loans that meet every part of the definition in RPAPL 1304(6): natural person, household purpose, one to four family home or condominium unit used as the borrower's principal dwelling, property in New York.
- A reverse mortgage. These get a different notice, headed "YOU COULD LOSE YOUR HOME TO FORECLOSURE," with a heading in at least 16-point type and a checklist of the claimed reasons for default, such as not occupying the home or not paying property taxes, and a stated right to dispute them (RPAPL 1304(1-a)).
- Bankruptcy or moving out. The 90-day waiting period does not apply, or stops applying, if the borrower has filed for bankruptcy or no longer occupies the home as a principal dwelling, but the notice must still be sent (RPAPL 1304(3)).
- A cure followed by a new default. One notice covers a twelve month period for the same borrower, loan and delinquency, but a borrower who cures and then defaults again within that period must get a new notice (RPAPL 1304(4)).
- Language. A borrower known to have limited English proficiency gets the notice in the borrower's native language if it is one of the six most common non-English languages in the state, and the Department of Financial Services posts the notices in those languages (RPAPL 1304(5)).
- A claim that you no longer live there, in Brooklyn. In Kings County, an affidavit claiming an exemption from the conference under CPLR 3408 and RPAPL 1304 must state its grounds with supporting documents, and a claim that the borrower moved out needs an affidavit of investigation (Kings County General Foreclosure Rules, rule 6). Local practice is covered in what to expect at Kings County Supreme Court in a foreclosure case.
For example: counting the 90 days
For example, imagine a borrower who owns and lives in a two-family house in Queens with a home loan in her own name. (This is a made-up illustration, not a real client or result.) On June 1 a 90-day notice is mailed to her by certified mail. No first-class copy ever arrives, and the certified envelope also holds a monthly statement. Because notice is considered given on the date it is mailed, the earliest the lender could start the case was 90 days later, August 30.
The summons and complaint show the case was filed on August 15, only 75 days after the mailing. She still has the certified envelope with its postmark and the statement that came inside it. Her answer raises three specific defects under RPAPL 1304: the case began before the 90 days ran, there was no first-class mailing, and the notice was not in a separate envelope. She keeps the envelope and its contents together, since disputes like this turn on proof of mailing.
Common mistakes with the 90-day notice
- Throwing away the envelopes. The postmark and the contents of each envelope can show the date, the mailing method and whether the separate-envelope rule was met (RPAPL 1304(2)).
- Raising the defense in general terms. CourtHelp advises saying exactly what was wrong: no notice, only one copy, or a case filed before the 90 days were up.
- Assuming an entity or rental property is covered, or not covered, without checking. The answer comes from each part of the RPAPL 1304(6) definition applied to the actual loan papers.
- Treating the notice as an eviction. The notice itself says it is not an eviction notice, that no case has started yet, and that you may stay in the home until a court orders you to leave (RPAPL 1304(1)).
- Waiting out the 90 days. CourtHelp urges borrowers not to wait before contacting a free or low-cost government approved housing counseling group.
- Mixing up the notice and standing. They are different defenses with different rules; the home loan rule that keeps standing alive (RPAPL 1302-a) speaks only of standing.
What to do this week
- Find every copy of the notice and every envelope it arrived in, with the postmarks visible, and anything else that came in the same envelope.
- Keep any certified mail slip, green card or tracking notice, and note where you were living on the date of mailing.
- Count the days from the mailing date to the date the case was filed, if papers have already arrived.
- Call one of the housing counseling agencies on the list, and keep a record of any letters you sent back.
- If you have been sued, put the specific notice defects in the answer before the deadline.
- Bring the notice, envelopes and loan papers on our foreclosure defense consultation checklist to a first meeting.
Frequently asked questions
Is the 90-day notice a lawsuit? Do I have to move out?
No to both. The required text says the notice is not an eviction notice and that a foreclosure action has not yet been commenced. It also says you may remain in the home until a court orders you to leave, and that you remain the owner and are responsible for the property until it is sold (RPAPL 1304(1)).
Can the lender sue before the 90 days are up?
Only in the situations the statute names. The 90-day wait does not apply, or stops applying, if the borrower files for bankruptcy or no longer occupies the home as a principal dwelling (RPAPL 1304(3)). The notice itself warns that legal action may come sooner if the borrower stops living there.
Does the notice apply to a credit line secured by my home?
It can. The RPAPL 1304(6) definition of a home loan expressly includes an open-end credit plan, as long as the other tests are met: a natural person borrower, household purpose, a one to four family home or condominium unit that is the principal dwelling, and property in New York.
If the case is dismissed over the notice, can the lender sue again?
A dismissal ends that case; it does not erase the debt. Any new case must fit within the six-year limitations period for mortgage actions (CPLR 213(4)), and CPLR 205-a gives the original plaintiff only one six-month window to refile after certain dismissals, with limits on assignees. How those rules interact is explained in how long a lender has to foreclose in New York.
I missed the deadline to answer. Can I still raise the notice?
CourtHelp explains that defenses are raised in the answer or when asking the court to vacate a default judgment, so the first task is getting back into the case. The routes, including the 30-day window after the first settlement conference, are covered in what to do if you missed the deadline to answer a foreclosure.
Will I hear from counselors again once the case is filed?
If the case gets the mandatory conference, yes. In a home loan case where the borrower lives in the property, when the request for judicial intervention is filed the court sends the borrower's contact information to a housing counseling agency on the state's list for the area (CPLR 3408(d)). That is part of the process described in what happens at a New York foreclosure settlement conference.