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