In many states in our country, borrowers do not have adequate protections in foreclosure action. In New York State, however, a foreclosing plaintiff must serve a borrower/defendant with pre-foreclosure notices. The laws governing these notices are applied strictly by the courts as long as:
You raise a defense based on applicable statutes early enough in the lawsuit,
You borrowed the loan for personal purposes, not business purposes, and
Your principal residence is the subject of the lawsuit.
The requirements governing pre-foreclosure notices are found in Article 13 of the Real Property Actions and Proceedings Law of New York State. Many sections of Article 13 were enacted in response to the “mortgage crisis” that began in 2008. You see, before the “mortgage crisis,” banks used to just submit their foreclosure actions to courts with very little opposition and, comparatively, little oversight. The courts could not continue that pattern in New York after the “mortgage crisis” because of the large number of foreclosures in New York.
Section 1303 of the RPAPL requires a pre-foreclosure notice be served with the Summons and Complaint in a foreclosure action – but on different colored paper.
Section 1304 of RPAPL requires that a particular pre-foreclosure notice be served separately on each “borrower” at least 90 days before commencement of the foreclosure action.
Section 1306 of RPAPL requires each foreclosing plaintiff to file proof of serving the 90-day notice with the Superintendent of Financial Services within 3 business days of serving the 90-day notice.
These are the main requirements of RPAPL 13 regarding pre-foreclosure notices. There are some others, but these are the main ones. I am not going into the requirements of each in fine detail. You just need to know that the courts apply these statutes strictly. If you want to read the statutes for yourself, go to RPAPL 13.
If the bank violates any of these statutes in a foreclosure action, you can have thee foreclosure action dismissed, usually. Many states in our country do not provide these protections for borrowers/home owners. We are truly lucky to have them in New York.