While standing may be the most common defense in a residential foreclosure action—it is hardly uncommon in commercial foreclosures as well – there should be little doubt that the RPAPL §1304 90-day pre-foreclosure notice mandate is surely the most insidious.  There are literally hundreds of cases where lenders lose the foreclosure (or at least are denied summary judgment) for perceived failure to comply with the notice obligation.  It is more than apparent that the mandate—a strictly enforced condition precedent to foreclosure in New York—is an ambush and a quagmire.  This becomes more obvious with the incessant issuance of cases defeating foreclosures and the reasons for this, if anything, are for the foreclosing party more frustrating than ever.

Stressing the actual consequences of case interpretations (even when plaintiffs win) is immediately meaningful.  The 90-day notice is a prerequisite to accelerations so the imperative has always grafted at least an additional 90 days upon the process.  Once that period expires, the mortgage holder is free to initiate a foreclosure and accelerate by so reciting in the complaint.  (The complaint must also state compliance with he notice provision so there is yet another place to stumble, albeit avoided with relative ease.)