Wilmington Savings Fund Society, FSB v Fischman
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Attorneys and Parties
Brief Summary
Residential mortgage foreclosure compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 [pre-foreclosure notice statute requiring specified notice to borrowers before commencement of a residential foreclosure action].
The Supreme Court granted the plaintiff's renewed motion for summary judgment against the Fischman defendants, struck their affirmative defense alleging noncompliance with RPAPL 1304, issued an order of reference, and later entered a judgment of foreclosure and sale.
The Appellate Division reversed the order and judgment of foreclosure and sale and modified the January 22, 2020 order by denying summary judgment, denial of the RPAPL 1304 defense, and the order of reference.
The plaintiff relied on a July 15, 2016 RPAPL 1304 notice that used pre-amendment statutory language, but the foreclosure action was not commenced until August 2017, after a December 20, 2016 amendment changed the required notice language. Because strict compliance with RPAPL 1304 is a condition precedent, the notice was defective.
Background
In August 2017, Wilmington Savings Fund Society, FSB commenced a mortgage foreclosure action against Nina Fischman and Aaron Fischman concerning residential property in Woodmere. The defendants answered and asserted, among other defenses, that the plaintiff failed to comply with RPAPL 1304. The plaintiff had sent a pre-foreclosure notice dated July 15, 2016. Although that notice matched the statutory language in effect when it was sent, RPAPL 1304 was amended effective December 20, 2016, and the action was filed after that amendment took effect.
Lower Court Decision
After initially denying the plaintiff's summary judgment motion with leave to renew, the Supreme Court, Nassau County, on renewal granted summary judgment on the amended complaint against Nina Fischman and Aaron Fischman, struck their affirmative defense based on RPAPL 1304, and issued an order of reference. The court later confirmed the referee's report and entered an order and judgment of foreclosure and sale on March 17, 2023.
Appellate Division Reversal
The Appellate Division held that the RPAPL 1304 notice was defective because it did not contain the language required by the version of the statute in effect when the action was commenced in August 2017. The court therefore reversed the foreclosure judgment and denied the branches of the plaintiff's renewed motion seeking summary judgment, to strike the RPAPL 1304 defense, and for an order of reference. The court also reached this issue even though it was raised for the first time on appeal, because it presented a pure question of law apparent on the face of the record.
Legal Significance
This decision emphasizes that in residential foreclosure actions, strict compliance with RPAPL 1304 is mandatory and is a condition precedent to suit. A lender cannot rely on a pre-foreclosure notice that complied with an earlier version of the statute if the action was commenced after an amendment changed the required notice language. The case also confirms that an appellate court may consider such a defect for the first time on appeal when it is a pure legal issue evident from the record.
A foreclosure plaintiff must ensure that its RPAPL 1304 notice matches the statutory language in effect when the action is commenced; otherwise, summary judgment and foreclosure relief may be denied even if the issue is first raised on appeal.