- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Wilmington Savings Fund Society v. Rodriguez
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03473
Background
Wilmington Savings Fund Society commenced this action to foreclose a mortgage on real property located in Staten Island against defendant Tomas Rodriguez and others. Rodriguez interposed a verified answer asserting several affirmative defenses, including the plaintiff’s failure to comply with RPAPL 1304, which requires a lender to mail a ninety-day pre-foreclosure notice to the borrower before commencing a residential foreclosure action. The plaintiff moved for summary judgment on the complaint, to strike Rodriguez’s RPAPL 1304 affirmative defense, and for an order of reference. Rodriguez opposed, arguing that the plaintiff failed to demonstrate strict compliance with RPAPL 1304. The Supreme Court, Richmond County, granted the plaintiff’s motion and appointed a referee to compute the amount due. Rodriguez appealed.
Holding
The Appellate Division reversed the order insofar as appealed from and denied the plaintiff’s motion for summary judgment, to strike the RPAPL 1304 defense, and for an order of reference. The Court held that strict compliance with RPAPL 1304 is a condition precedent to the commencement of a foreclosure action, and the burden is on the plaintiff to demonstrate such compliance. The Court found that the plaintiff’s proof was insufficient to establish, as a matter of law, that it had strictly complied with the requirements of RPAPL 1304, including the requirement that the prescribed ninety-day notice be sent by registered or certified mail and also by first-class mail to the last known address of the borrower. The plaintiff’s failure to make a prima facie showing of strict compliance warranted denial of the motion regardless of the sufficiency of the defendant’s opposition.
Takeaways
RPAPL 1304 compliance remains one of the most strictly enforced requirements in New York residential foreclosure litigation. A lender must demonstrate that it sent the ninety-day pre-foreclosure notice by both registered or certified mail and by first-class mail to the borrower’s last known address. Substantial compliance is insufficient; the statute demands strict compliance, and the lender bears the burden of demonstrating it on a motion for summary judgment. This includes proof of the content of the notice, the method of mailing, and the address used. Failure to make this showing is fatal to the summary judgment motion, regardless of the opposition.
Why It Matters
For mortgage servicers and foreclosure attorneys, this decision serves as a pointed reminder that courts in New York will not excuse gaps in RPAPL 1304 compliance documentation. The dual-mailing requirement—certified or registered mail plus first-class mail—must be proven with affirmative evidence, typically through business records or affidavits of mailing. A foreclosure plaintiff that cannot assemble this proof at the summary judgment stage will see its motion denied, even if the borrower cannot point to any specific deficiency in the notice. Borrowers and their counsel should continue to assert RPAPL 1304 defenses aggressively, as courts remain willing to reverse summary judgments where strict compliance is not convincingly demonstrated.