In W.S.F.S. v. Blum, the Appellate Division, Second Department, addressed a mortgage foreclosure action where the lender’s procedural misstep proved fatal to its motion for summary judgment.
W.S.F.S., the plaintiff, sought to foreclose on a property owned by S.B., alleging default under the mortgage agreement. After initiating the action, W.S.F.S. moved for summary judgment and requested an order of reference to calculate the amount owed. The Queens County Supreme Court denied both requests, citing unresolved issues regarding statutory notice requirements. W.S.F.S. appealed.
The core issue on appeal was whether W.S.F.S. had strictly complied with Real Property Actions and Proceedings Law § 1304, which mandates that a lender must send a 90-day pre-foreclosure notice to the borrower before commencing legal action. This notice must be sent by certified and first-class mail to the borrower’s property address and any other known address. Compliance with RPAPL 1304 is a condition precedent to foreclosure, and courts require strict adherence.
W.S.F.S. attempted to demonstrate compliance through an affidavit of mailing by M.B., who stated that he mailed the required notices to S.B. However, the affidavit lacked critical information: it did not identify M.B.’s employer, nor did it establish any connection between M.B. and W.S.F.S. or its legal counsel. The notices were sent from a California address associated with the plaintiff, not the law firm handling the case. This gap in the evidentiary chain left the court unconvinced that the mailing was properly executed under RPAPL 1304.
While W.S.F.S. did satisfy the notice of default provisions under the mortgage agreement—by submitting law firm-generated documents with appropriate mailing details—that alone was insufficient. RPAPL 1304 imposes a separate and more stringent requirement, and the plaintiff’s failure to establish who mailed the notices and under what authority undermined its claim of compliance.
As a result, the appellate court affirmed the lower court’s denial of summary judgment and the order of reference. The decision reinforces the unforgiving nature of RPAPL 1304 and the necessity for lenders to document every step of the notice process with precision. Even where the borrower’s default is uncontested, procedural missteps can derail foreclosure efforts.
Mailing mistakes made legal waves here ...
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DECISION