New York State’s highest court issued a ruling in Bank of America v. Kessler on February 14. Effectively the ruling reverses the Appellate Division, Second Department’s 2021 decision.

It is important to understand the history of a pre-foreclosure notice. New York State, under RPAPL 1304, requires lenders serve a specific notice at least 90 days before the commencement of a foreclosure action to the borrower. The notice is commonly known as the “90-Day Notice”

Purpose of RPAPL 1304

The purpose of an RPAPL 1304 notice is to provide borrowers with a fair opportunity to cure a mortgage default before foreclosure proceedings are initiated. 

When a borrower defaults on their mortgage payments, the lender has the legal right to initiate foreclosure proceedings to recover the amount owed. However, New York State law requires that the lender provide the borrower with a 90-Day Notice prior to initiating foreclosure proceedings. This notice is intended to give borrowers time to work with their lender to find a way to cure the default and avoid foreclosure.

How is an RPAPL 1304 notice delivered?

RPAPL 1304 (2) requires notice to be sent to the borrower by registered or certified mail. The notice must be delivered to the borrower’s last known address, and it must be sent at least 90 days before the lender initiates foreclosure proceedings. If they cannot be located or if the notice is returned as undeliverable, the lender may be required to make additional attempts to deliver the notice.

Compliance with RPAPL 1304 can be “established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.” (JP Morgan Chase Bank v. Williams, 94 N.Y.S. 3d 882 (2d Dept 2019)

Consequently, if a lender does not prove proper service a foreclosure action will be dismissed.

Contents of RPAPL 1304

Certainly, it should be no shock that the contents of the 90-Day Notice require strict compliance with RPAPL 1304. 

Most importantly the notice must be sent with:

  • 14 point font
  • Attached list with at least five housing counselors

Facts of Bank of America v. Kessler

  • September 2013, Defendant, Andrew Kessler, defaulted on his loan with Bank of America.
  • Bank of America sent a 90-day notice pursuant to RPAPL 1304.
    • On the last page of the 90-Day Notice it included language, which is not required by RPAPL 1304, the language included the following disclosures:
      • Notice mailed by a debt collector pursuant to the Fair Debt Collection Practices Act;
      • Notice that if the recipient is a debtor in bankruptcy or previously discharged in bankruptcy the notice is for informational purposes only; and
      • Notice for borrowers and spouses in the military under the Servicemembers Civil Relief Act.
  • Bank of America commenced an action.
  • Defendant, Kessler filed a motion to dismiss the action alleging the disclosures violated the separate envelope provision in RPAPL 1304(2)
  • Westchester County Supreme Court granted Defendant’s cross-motion and the foreclosure complaint was dismissed. 
  • Bank of America appealed the decision from the supreme court.

Appellate Decision December 2021

The Appellate Division, Second Department issued a decision strictly interpreting RPAPL 1304. To summarize, they found “that inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2).”

Court of Appeals Decision February 2023

Oral argument was heard on January 4th with a decision issued on February 14. 

In spite of the Defendant’s arguments, the Court of Appeals reversed the lower court’s decision and held that the inclusion of “concise and relevant additional information” did the notice which was otherwise proper. 


In brief, the financial services industry may be rejoicing with the decision, but they should be careful not to forget the importance of RPAPL 1304 notices being proper. And in recent decisions, it is important to note that the Second Department has remained a stickler on the specific wording of RPAPL1304. In one instance, in the Case of Wells Fargo v. Matsuoka, they denied a motion for summary judgment and said triable issues of fact existed because the servicers agent only generally stated the notice was sent but did not specify the exact person that sent it.

Also, in light of the swiftness of how FAPA was enacted, expect the legislature to act in response to this decision.

If you believe you were improperly noticed for the commencement of a foreclosure action, please contact us.

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