N.Y. Real Property Actions & Proceedings Law § 1304
Required prior notices
Redline — January 1, 2017 → current.View current text →
Current — January 1, 2023
As of January 1, 2017
§ 1304. Required prior notices. ** 1. Notwithstanding any other\nprovision of law, with regard to a home loan, at least ninety days\nbefore a lender, an assignee or a mortgage loan servicer commences legal\naction against the borrower, or borrowers at the property address and\nany other address of record, including mortgage foreclosure, such\nlender, assignee or mortgage loan servicer shall give notice to the\nborrower in at least fourteen-point type which shall include the\nfollowing:\n "YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE\n CAREFULLY"\n "As of ___, your home loan is ___ days and ___ dollars in default.\nUnder New York State Law, we are required to send you this notice to\ninform you that you are at risk of losing your home.\n Attached to this notice is a list of government approved housing\ncounseling agencies in your area which provide free counseling. You can\nalso call the NYS Office of the Attorney General's Homeowner Protection\nProgram (HOPP) toll-free consumer hotline to be connected to free\nhousing counseling services in your area at 1-855-HOME-456\n(1-855-466-3456), or visit their website at http://www.aghomehelp.com/.\nA statewide listing by county is also available at\nhttp://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.\nQualified free help is available; watch out for companies or people who\ncharge a fee for these services.\n Housing counselors from New York-based agencies listed on the website\nabove are trained to help homeowners who are having problems making\ntheir mortgage payments and can help you find the best option for your\nsituation. If you wish, you may also contact us directly at __________\nand ask to discuss possible options.\n While we cannot assure that a mutually agreeable resolution is\npossible, we encourage you to take immediate steps to try to achieve a\nresolution. The longer you wait, the fewer options you may have.\n If you have not taken any actions to resolve this matter within 90\ndays from the date this notice was mailed, we may commence legal action\nagainst you (or sooner if you cease to live in the dwelling as your\nprimary residence.)\n If you need further information, please call the New York State\nDepartment of Financial Services' toll-free helpline at (show number) or\nvisit the Department's website at (show web address).\n IMPORTANT: You have the right to remain in your home until you receive\na court order telling you to leave the property. If a foreclosure action\nis filed against you in court, you still have the right to remain in the\nhome until a court orders you to leave. You legally remain the owner of\nand are responsible for the property until the property is sold by you\nor by order of the court at the conclusion of any foreclosure\nproceedings. This notice is not an eviction notice, and a foreclosure\naction has not yet been commenced against you.\n ** NB Effective until January 14, 2020\n ** 1. Notwithstanding any other provision of law, with regard to a\nhigh-cost home loan, as such term is defined in section six-l of the\nbanking law, a subprime home loan or a non-traditional home loan, at\nleast ninety days before a lender or a mortgage loan servicer commences\nlegal action against the borrower, including mortgage foreclosure, the\nlender or mortgage loan servicer shall give notice to the borrower(s) at\nthe property address and any other address of record in at least\nfourteen-point type which shall include the following:\n "YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE\n CAREFULLY"\n "As of ___, your home loan is ___ days and ___ dollars in default.\nUnder New York State Law, we are required to send you this notice to\ninform you that you are at risk of losing your home. There may be\noptions available to you to keep your home. This may include applying\nfor a loan modification of your mortgage, or reinstating your loan by\nmaking the payment.\n Attached to this notice is a list of government approved housing\ncounseling agencies in your area which provide free or very low-cost\ncounseling. You can also call the NYS Office of the Attorney General's\nHomeowner Protection Program (HOPP) toll-free consumer hotline to be\nconnected to free housing counseling services in your area at\n1-855-HOME-456 (1-855-466-3456), or visit their website at\nhttp://www.aghomehelp.com/. A statewide listing by county is also\navailable at http://www.dfs.ny.gov/consumer/mortg nys np counseling\nagencies.htm. Qualified free help is available; watch out for companies\nor people who charge a fee for these services.\n Housing counselors from New York-based agencies listed on the website\nabove are trained to help homeowners who are having problems making\ntheir mortgage payments and can help you find the best option for your\nsituation. If you wish, you may also contact us directly at __________\nand ask to discuss possible options.\n While we cannot assure that a mutually agreeable resolution is\npossible, we encourage you to take immediate steps to try to achieve a\nresolution. The longer you wait, the fewer options you may have.\n If you have not taken any actions to resolve this matter within 90\ndays from the date this notice was mailed, we may commence legal action\nagainst you (or sooner if you cease to live in the dwelling as your\nprimary residence.)\n If you need further information, please call the New York State\nDepartment of Financial Services' toll-free helpline at (show number) or\nvisit the Department's website at (show web address)".\n IMPORTANT: You have the right to remain in your home until you receive\na court order telling you to leave the property. If a foreclosure action\nis filed against you in court, you still have the right to remain in the\nhome until a court orders you to leave. You legally remain the owner of\nand are responsible for the property until the property is sold by you\nor by order of the court at the conclusion of any foreclosure\nproceedings. This notice is not an eviction notice, and a foreclosure\naction has not yet been commenced against you.\n ** NB Effective January 14, 2020\n ** 2. Such notice shall be sent by such lender, assignee (including\npurchasing investor) or mortgage loan servicer to the borrower, by\nregistered or certified mail and also by first-class mail to the last\nknown address of the borrower, and to the residence that is the subject\nof the mortgage. Such notice shall be sent by the lender, assignee or\nmortgage loan servicer in a separate envelope from any other mailing or\nnotice. Notice is considered given as of the date it is mailed. The\nnotice shall contain a current list of at least five housing counseling\nagencies serving the county where the property is located from the most\nrecent listing available from department of financial services. The list\nshall include the counseling agencies' last known addresses and\ntelephone numbers. The department of financial services shall make\navailable on its websites a listing, by county, of such agencies. The\nlender, assignee or mortgage loan servicer shall use such lists to meet\nthe requirements of this section.\n ** NB Effective until January 14, 2020\n ** 2. Such notice shall be sent by the lender or mortgage loan\nservicer to the borrower, by registered or certified mail and also by\nfirst-class mail to the last known address of the borrower, and to the\nresidence which is the subject of the mortgage. Notice is considered\ngiven as of the date it is mailed. The notice shall contain a current\nlist of United States department of housing and urban development\napproved housing counseling agencies, or other housing counseling\nagencies serving the county where the property is located from the most\nrecent listing available from the department of financial services. The\nlist shall include the counseling agencies' last known addresses and\ntelephone numbers. The department of financial services shall make\navailable a listing, by county, of such agencies which the lender or\nmortgage loan servicer may use to meet the requirements of this section.\n ** NB Effective January 14, 2020\n 3. The ninety day period specified in the notice contained in\nsubdivision one of this section shall not apply, or shall cease to\napply, if the borrower has filed for bankruptcy protection under federal\nlaw, or if the borrower no longer occupies the residence as the\nborrower's principal dwelling. Nothing herein shall relieve the lender,\nassignee or mortgage loan servicer of the obligation to send such\nnotice, which notice shall be a condition precedent to commencing a\nforeclosure proceeding.\n 4. The notice and the ninety day period required by subdivision one of\nthis section need only be provided once in a twelve month period to the\nsame borrower in connection with the same loan and same delinquency.\nShould a borrower cure a delinquency but re-default in the same twelve\nmonth period, the lender shall provide a new notice pursuant to this\nsection.\n 5. For any borrower known to have limited English proficiency, the\nnotice required by subdivision one of this section shall be in the\nborrower's native language (or a language in which the borrower is\nproficient), provided that the language is one of the six most common\nnon-English languages spoken by individuals with limited English\nproficiency in the state of New York, based on United States census\ndata. The department of financial services shall post the notice\nrequired by subdivision one of this section on its website in the six\nmost common non-English languages spoken by individuals with limited\nEnglish proficiency in the state of New York, based on the United States\ncensus data.\n ** 6. (a) "Home loan" means a loan, including an open-end credit plan,\nother than a reverse mortgage transaction, in which:\n (i) The borrower is a natural person;\n (ii) The debt is incurred by the borrower primarily for personal,\nfamily, or household purposes;\n (iii) The loan is secured by a mortgage or deed of trust on real\nestate improved by a one to four family dwelling, or a condominium unit,\nin either case, used or occupied, or intended to be used or occupied\nwholly or partly, as the home or residence of one or more persons and\nwhich is or will be occupied by the borrower as the borrower's principal\ndwelling; and\n (iv) The property is located in this state.\n (b) "Lender" means a mortgage banker as defined in paragraph (f) of\nsubdivision one of section five hundred ninety of the banking law or an\nexempt organization as defined in paragraph (e) of subdivision one of\nsection five hundred ninety of the banking law.\n ** NB Effective until January 14, 2020\n ** 6. (a) "Annual percentage rate" means the annual percentage rate\nfor the loan calculated according to the provisions of the Federal\nTruth-in-Lending Act (15 U.S.C. § 1601, et seq.), and the regulations\npromulgated thereunder by the federal reserve board (as said act and\nregulations are amended from time to time).\n (b) "Home loan" means a home loan, including an open-end credit plan,\nother than a reverse mortgage transaction, in which:\n (i) The principal amount of the loan at origination did not exceed the\nconforming loan size that was in existence at the time of origination\nfor a comparable dwelling as established by the federal national\nmortgage association;\n (ii) The borrower is a natural person;\n (iii) The debt is incurred by the borrower primarily for personal,\nfamily, or household purposes;\n (iv) The loan is secured by a mortgage or deed of trust on real estate\nupon which there is located or there is to be located a structure or\nstructures intended principally for occupancy of from one to four\nfamilies which is or will be occupied by the borrower as the borrower's\nprincipal dwelling; and\n (v) The property is located in this state.\n (c) "Subprime home loan" for the purposes of this section, means a\nhome loan consummated between January first, two thousand three and\nSeptember first, two thousand eight in which the terms of the loan\nexceed the threshold as defined in paragraph (d) of this subdivision. A\nsubprime home loan excludes a transaction to finance the initial\nconstruction of a dwelling, a temporary or "bridge" loan with a term of\ntwelve months or less, such as a loan to purchase a new dwelling where\nthe borrower plans to sell a current dwelling within twelve months, or a\nhome equity line of credit.\n (d) "Threshold" means, for a first lien mortgage loan, the annual\npercentage rate of the home loan at consummation of the transaction\nexceeds three percentage points over the yield on treasury securities\nhaving comparable periods of maturity to the loan maturity measured as\nof the fifteenth day of the month in which the loan was consummated; or\nfor a subordinate mortgage lien, the annual percentage rate of the home\nloan at consummation of the transaction equals or exceeds five\npercentage points over the yield on treasury securities having\ncomparable periods of maturity on the fifteenth day of the month in\nwhich the loan was consummated; as determined by the following rules: if\nthe terms of the home loan offer any initial or introductory period, and\nthe annual percentage rate is less than that which will apply after the\nend of such initial or introductory period, then the annual percentage\nrate that shall be taken into account for purposes of this section shall\nbe the rate which applies after the initial or introductory period.\n (e) "Non-traditional home loan" shall mean a payment option adjustable\nrate mortgage or an interest only loan consummated between January\nfirst, two thousand three and September first, two thousand eight.\n (f) For purposes of determining the threshold, the department of\nfinancial services shall publish on its website a listing of constant\nmaturity yields for U.S. Treasury securities for each month between\nJanuary first, two thousand three and September first, two thousand\neight, as published in the Federal Reserve Statistical Release on\nselected interest rates, commonly referred to as the H.15 release, in\nthe following maturities, to the extent available in such release: six\nmonth, one year, two year, three year, five year, seven year, ten year,\nthirty year.\n (g) "Lender" means a mortgage banker as defined in paragraph (f) of\nsubdivision one of section five hundred ninety of the banking law or an\nexempt organization as defined in paragraph (e) of subdivision one of\nsection five hundred ninety of the banking law.\n ** NB Effective January 14, 2020\n ** 7. The department of financial services shall prescribe the\ntelephone number and web address to be included in the notice.\n ** NB Effective until January 14, 2020\n ** 7. The department of financial services shall prescribe the\ntelephone number and web address to be included in the notice.\n ** NB Effective January 14, 2020\n
§ 1304. Required prior notices. 1. Notwithstanding any other provision\nof law, with regard to a home loan, at least ninety days before a\nlender, an assignee or a mortgage loan servicer commences legal action\nagainst the borrower, or borrowers at the property address and any other\naddress of record, including mortgage foreclosure, such lender, assignee\nor mortgage loan servicer shall give notice to the borrower in at least\nfourteen-point type which shall include the following:\n "YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE\n CAREFULLY"\n "As of ___, your home loan is ___ days and ___ dollars in default.\nUnder New York State Law, we are required to send you this notice to\ninform you that you are at risk of losing your home.\n Attached to this notice is a list of government approved housing\ncounseling agencies in your area which provide free counseling. You can\nalso call the NYS Office of the Attorney General's Homeowner Protection\nProgram (HOPP) toll-free consumer hotline to be connected to free\nhousing counseling services in your area at 1-855-HOME-456\n(1-855-466-3456), or visit their website at http://www.aghomehelp.com/.\nA statewide listing by county is also available at\nhttp://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.\nQualified free help is available; watch out for companies or people who\ncharge a fee for these services.\n Housing counselors from New York-based agencies listed on the website\nabove are trained to help homeowners who are having problems making\ntheir mortgage payments and can help you find the best option for your\nsituation. If you wish, you may also contact us directly at __________\nand ask to discuss possible options.\n While we cannot assure that a mutually agreeable resolution is\npossible, we encourage you to take immediate steps to try to achieve a\nresolution. The longer you wait, the fewer options you may have.\n If you have not taken any actions to resolve this matter within 90\ndays from the date this notice was mailed, we may commence legal action\nagainst you (or sooner if you cease to live in the dwelling as your\nprimary residence.)\n If you need further information, please call the New York State\nDepartment of Financial Services' toll-free helpline at (show number) or\nvisit the Department's website at (show web address).\n IMPORTANT: You have the right to remain in your home until you receive\na court order telling you to leave the property. If a foreclosure action\nis filed against you in court, you still have the right to remain in the\nhome until a court orders you to leave. You legally remain the owner of\nand are responsible for the property until the property is sold by you\nor by order of the court at the conclusion of any foreclosure\nproceedings. This notice is not an eviction notice, and a foreclosure\naction has not yet been commenced against you.\n 1-a. Notwithstanding any other provision of law, with regard to a\nreverse mortgage home loan, at least ninety days before a lender, an\nassignee or a mortgage loan servicer commences legal action against the\nborrower or borrowers at the property address and any other addresses of\nrecord, including reverse mortgage foreclosure, such lender, assignee or\nmortgage loan servicer shall give notice to the borrower in at least\nfourteen-point type except for the heading which shall be in at least\nsixteen-point type which shall include the following:\n "YOU COULD LOSE YOUR HOME TO FORECLOSURE.\n PLEASE READ THE FOLLOWING NOTICE CAREFULLY.\nDate\nBorrower's address\nLoan Number:\nProperty Address:\nDear Borrower(s):\nAs of ___________, we as your lender or servicer claim that your reverse\nmortgage loan is ___ days in default. Under New York State Law, we are\nrequired to send you this notice to inform you that you may be at risk\nof losing your home.\nWe, the lender or servicer of your loan, are claiming that your reverse\nmortgage loan is in default because you have not complied with the\nfollowing conditions of your loan:\n_____ You are not occupying your home as your principal residence\n_____ You did not submit the required annual certificate of occupancy\n_____ The named borrower on the reverse mortgage has died\n_____ You did not pay property taxes\n {Servicer name} paid your property taxes for the following\n time periods:___________________________\n ______________________ {quarter/year}\n_____ You did not maintain homeowner's insurance\n {Servicer name} purchased homeowner's insurance for you on the\n following date(s) and for the following cost(s):\n ____________________________________\n_____ You did not pay water/sewer charges\n {Servicer name} paid water/sewer charges for you on the\n following date(s) and for the following cost(s):\n ________________________\n_____ You did not make required repairs to your home\nIf the claim is based on your failure to pay property or water and sewer\ncharges or maintain homeowner's insurance, you can cure this default by\nmaking the payment of $____________ for the advancements we made towards\nthese payments on your behalf.\nYou have the right to dispute the claims listed above by contacting us,\nby calling ___________ or sending a letter to __________________. This\nmay include proof of payments made for property taxes or water and sewer\ncharges or a current declaration page from your insurance company, or\nany other proof to dispute the servicer's claim.\nIf you are in default for failure to pay property charges (property\ntaxes, homeowner's insurance and/or water/sewer charges) you may qualify\nfor a grant, loan, or re-payment plan to cure the default balance owed.\nIf you are in default due to the death of your spouse, you may be\nconsidered an eligible "Non-Borrowing Spouse" under a HUD program which\nallows you to remain in your home for the rest of your life.\nIf you are over the age of 80 and have a long term illness, you may also\nqualify for the "At-Risk Extension," which allows you to remain in your\nhome for one additional year and requires an annual re-certification.\nAttached to this notice is a list of government-approved housing\ncounseling agencies and legal services in your area which provide free\ncounseling. You can also call the NYS Office of the Attorney General's\nHomeowner Protection Program (HOPP) toll-free consumer hotline to be\nconnected to free housing counseling services in your area at\n1-855-HOME-456 (1-855-466-3456), or visit their website at\nhttp://www.aghomehelp.com. A statewide listing by county is also\navailable at\nhttp://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.\nYou may also call your local Department of Aging for a referral or call\n311 if you live in New York City.\nQualified free help is available; watch out for companies or people who\ncharge a fee for these services.\nYou may also contact us directly at __________ and ask to discuss all\npossible options to allow you to cure your default and prevent the\nforeclosure of your home. While we cannot ensure that a resolution is\npossible, we encourage you to take immediate steps to try to achieve a\nresolution. The longer you wait, the fewer options you may have.\nIf you have not taken any actions to resolve this matter within 90 days\nfrom the date this notice was mailed, we may commence legal action\nagainst you (or sooner if you cease to live in the dwelling as your\nprimary residence).\nIf you need further information, please call the New York State\nDepartment of Financial Services' toll-free helpline at 877-226-5697 or\nvisit the Department's website at http://www.dfs.ny.gov.\nIMPORTANT: You have the right to remain in your home until you receive a\ncourt order telling you to leave the property. If a foreclosure action\nis filed against you in court, you still have the right to remain in the\nhome until a court orders you to leave. You legally remain the owner of\nand are responsible for the property until the property is sold by you\nor by order of the court at the conclusion of any foreclosure\nproceedings. This notice is not an eviction notice, and a foreclosure\naction has not yet been commenced against you."\n A lender, assignee or mortgage loan servicer of a reverse mortgage\nhome loan which provides notice to the borrower as required by this\nsubdivision is not required to provide notice to such borrower with\nregard to such loan pursuant to subdivision one of this section.\n 2. The notices required by this section shall be sent by such lender,\nassignee (including purchasing investor) or mortgage loan servicer to\nthe borrower, by registered or certified mail and also by first-class\nmail to the last known address of the borrower, and to the residence\nthat is the subject of the mortgage. The notices required by this\nsection shall be sent by the lender, assignee or mortgage loan servicer\nin a separate envelope from any other mailing or notice. Notice is\nconsidered given as of the date it is mailed. The notices required by\nthis section shall contain a current list of at least five housing\ncounseling agencies serving the county where the property is located\nfrom the most recent listing available from department of financial\nservices. The list shall include the counseling agencies' last known\naddresses and telephone numbers. The department of financial services\nshall make available on its websites a listing, by county, of such\nagencies. The lender, assignee or mortgage loan servicer shall use such\nlists to meet the requirements of this section.\n 3. The ninety day period specified in the notices contained in\nsubdivisions one and one-a of this section shall not apply, or shall\ncease to apply, if the borrower has filed for bankruptcy protection\nunder federal law, or if the borrower no longer occupies the residence\nas the borrower's principal dwelling. Nothing herein shall relieve the\nlender, assignee or mortgage loan servicer of the obligation to send\nsuch notices, which notices shall be a condition precedent to commencing\na foreclosure proceeding.\n 4. The notices required by this section and the ninety day period\nrequired by subdivisions one and one-a of this section need only be\nprovided once in a twelve month period to the same borrower in\nconnection with the same loan and same delinquency. Should a borrower\ncure a delinquency but re-default in the same twelve month period, the\nlender shall provide a new notice pursuant to this section.\n 5. For any borrower known to have limited English proficiency, the\nnotices required by subdivisions one and one-a of this section shall be\nin the borrower's native language (or a language in which the borrower\nis proficient), provided that the language is one of the six most common\nnon-English languages spoken by individuals with limited English\nproficiency in the state of New York, based on United States census\ndata. The department of financial services shall post the notices\nrequired by subdivisions one and one-a of this section on its website in\nthe six most common non-English languages spoken by individuals with\nlimited English proficiency in the state of New York, based on the\nUnited States census data.\n 6. (a) (1) "Home loan" means a loan, including an open-end credit\nplan, in which:\n (i) The borrower is a natural person;\n (ii) The debt is incurred by the borrower primarily for personal,\nfamily, or household purposes;\n (iii) The loan is secured by a mortgage or deed of trust on real\nestate improved by a one to four family dwelling, or a condominium unit,\nin either case, used or occupied, or intended to be used or occupied\nwholly or partly, as the home or residence of one or more persons and\nwhich is or will be occupied by the borrower as the borrower's principal\ndwelling; and\n (iv) The property is located in this state.\n (2) A home loan shall include a loan secured by a reverse mortgage\nthat meets the requirements of clauses (i) through (iv) of subparagraph\none of this paragraph.\n (b) "Lender" means a mortgage banker as defined in paragraph (f) of\nsubdivision one of section five hundred ninety of the banking law or an\nexempt organization as defined in paragraph (e) of subdivision one of\nsection five hundred ninety of the banking law.\n 7. The department of financial services shall prescribe the telephone\nnumber and web address to be included in the notice.\n
Official source: NYS Open Legislation (New York State Senate). Reproduced from public-domain New York statutes; confirm against the official source for the current text. Not legal advice.