90 Day Pre-Foreclosure Notice:
What to Know about it in NY
If you are late on payments on your residential home mortgage, then you might have received a notice in the mail warning you that some legal action will be taken. This 90 day pre-foreclosure notice you received must adhere to specific requirements set out in the law. If a lender or mortgage loan servicer has not followed the proper instructions, then it cannot legally bring a foreclosure in court against its borrower. In this article we’ll take you through the requirements for the 90 day pre-foreclosure notice with regards to home loans.
Why is this Important?
What will usually happen is that the lender’s lawyer will file a motion for summary judgment to end the case and win. [Read: What is a motion for summary judgment?] If the lender did not follow the rules for the notice, then you or your lawyer could file a motion in opposition to the lender’s motion and argue that the lender should not win the case because it did not comply with the rules for the 90 day notice.
Requirements for 90 Day Pre-Foreclosure Notice
1. When Must the Notice be Sent?
As the nickname suggests, the notice must be mailed to the borrower at least 90 days before the lender, assignee, or mortgage loan servicer begins any legal action, including a mortgage foreclosure.
2. Where Must the 90 Day Pre-Foreclosure Notice be Sent?
The notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the home that is mortgaged. The notice must be mailed in a separate envelope from any other notice or letter sent.
3. When is the Notice Effective?
The notice is considered given on the date it is mailed. For example, let’s say a lender filed a law suit on day zero (0). If the notice was mailed to the borrower on day -90, but it only reached him on day -88, then the notice has not violated the rules because it was mailed at least 90 days before any legal action commenced.
4. How Often Must the Notice Be Sent?
If the notice is being sent to the same borrower for the same delinquent balance, then the notice needs to only be provided once in a twelve (12) month period. This means, that the lender could mail the borrower the notice in January, but decide to actually sue the borrower in July. If the borrower paid off the first delinquent balance, but later ended up not making payments again, then the lender would need to send a new notice.
5. What Must be Included in the Notice?
The notice must have a current list of at least five housing counseling agencies that serve the county where the mortgaged property is located, along with the agencies’ addresses and telephone numbers. The housing counseling agencies in the notice should be from the most recent listing available from department of financial services. In one case, the court denied the lender’s motion for summary judgment because the lender’s notice listed an agency more than 300 miles away from the borrower’s residence. See U.S. Bank National Association v. Haliotis, 185 A.D. 3d 756 (2nd Dept. 2020).
6. What Must the 90 Day Pre-Foreclosure Notice Say?
The notice must have the quoted words below in at least fourteen-point type.
“YOU MAY BE AT RISK OF FORECLOSURE.
PLEASE READ THE FOLLOWING NOTICE CAREFULLY”
“As of _______, your home loan is ______ days and _______ dollars in default. Under New York State Law, we are required to send you this notice to inform you that you are at risk of losing your home.
Attached to this notice is a list of government approved housing counseling agencies in your area which provide free counseling. You can also call the NYS Office of the Attorney General’s Homeowner Protection Program (HOPP) toll-free consumer hotline to be connected to free housing counseling services in your area at 1-855-HOME-456 (1-855-466-3456), or visit their website at http://www.aghomehelp.com/. A statewide listing by county is also available at http://www.dfs.ny.gov/consumer/mortg_nys_np_counseling_agencies.htm. Qualified free help is available; watch out for companies or people who charge a fee for these services.
Housing counselors from New York-based agencies listed on the website above are trained to help homeowners who are having problems making their mortgage payments and can help you find the best option for your situation. If you wish, you may also contact us directly at ________ and ask to discuss possible options.
While we cannot assure that a mutually agreeable resolution is possible, we encourage you to take immediate steps to try to achieve a resolution. The longer you wait, the fewer options you may have.
If you have not taken any actions to resolve this matter within 90 days from the date this notice was mailed, we may commence legal action against you (or sooner if you cease to live in the dwelling as your primary residence.)
If you need further information, please call the New York State Department of Financial Services’ toll-free helpline at (show number) or visit the Department’s website at (show web address).
IMPORTANT: You have the right to remain in your home until you receive a court order telling you to leave the property. If a foreclosure action is filed against you in court, you still have the right to remain in the home until a court orders you to leave. You legally remain the owner of and are responsible for the property until the property is sold by you or by order of the court at the conclusion of any foreclosure proceedings. This notice is not an eviction notice, and a foreclosure action has not yet been commenced against you.”
7. What Language Must the Notice be Written in?
If it is known that the borrower has limited English proficiency and the borrower is proficient in one of the six most common non-English languages spoken by people with limited English proficiency in New York, then the notice must be in the borrower’s native language or a language the borrower is proficient in. As of publishing this article, the languages posted are: Spanish, Russian, Korean, Haitian-Creole, Chinese, and Bengali.
Find it in the New York Consolidated Laws, Real Property Actions & Proceedings § 1304.
Word of Caution — This post is for educational purposes. Foreclosure forms and processes may be very complex and have significant consequences. It is best to always seek advice and help from a licensed lawyer.