RPAPL Section 1304 (90 day Pre-foreclosure Notice)

RPAPL Section 1304 generally applies to situations where there is an individual homeowner who has defaulted on his/her home mortgage. As long as the borrower is still residing in the property, the holder of the home mortgage ("the mortgagee") may be required to serve the borrower with a 90 day pre-foreclosure notice and failure to do so may be fatal to any subsequent foreclosure action filed by the mortgagee. The section 1304 notice is intended to permit the borrower breathing time to seek mortgage counseling and to apply for mortgage assistance directly with the mortgagee.  Sometimes, the mortgagee may issue the section 1304 notice, and contemporaneously issue a standard default notice pursuant to the terms of the mortgage.  If this is the case, the default notice issued pursuant to the mortgage will need to be compared with the section 1304 notice to see if there is any conflict.  If there is a conflict, it can be a strong legal defense which must be raised in the foreclosure action.  It is sage advice to always seek representation from an experienced foreclosure lawyer.