Right to a 90-day warning before a foreclosure lawsuit
N.Y. Real Prop. Acts. Law § 1304(1)
In plain words
For a home loan on the home you live in, the lender or servicer must send you a special notice at least 90 days before it sues to foreclose. The notice must list free housing counseling agencies near you. A foreclosure case filed without a proper 90-day notice can be dismissed.
Who is protected
Borrowers on a “home loan” (1–4 family home or condo they occupy as their principal home).
When it applies
- Only in New York.
- Only while you are behind but have no foreclosure notice yet or after a notice of default.
- Only if the home is your primary residence.
What you can do
Put the deadline on your calendar
Enter the date on your notice so Techoclaro can count the days and remind you.
Open the toolCall a housing counselor on the list
Use the 90 days to apply for help and to check whether the notice was sent correctly.
Deadline: During the 90 days before any lawsuit
Open the toolRead your state guide and find free help
Open the state page for the process, deadlines and legal-aid contacts in your state.
Open the tool
Honest limits
- The notice gives you time and information; it does not by itself stop the lender from suing once the 90 days pass.
- A notice defect is a defense you usually must raise in the case — do not ignore court papers.
- This is general education, not legal advice. Laws change and details matter — check the current official text or talk to a legal aid lawyer or HUD-approved housing counselor.
The law
- State lawRPAPL 1304 — 90-day pre-foreclosure notice
N.Y. Real Prop. Acts. Law § 1304(1)
Exact part: (1)
What it says: At least 90 days before starting a foreclosure on a home loan, the lender must send a notice with housing-counselor information.
Read the official texthttps://www.nysenate.gov/legislation/laws/RPA/1304
Court cases
- Homeowner lostCited for this rightFreedom Mortgage Corp. v. Engel
Freedom Mortg. Corp. v. Engel, 37 N.Y.3d 1 (2021)
a noteholder's voluntary discontinuance of a foreclosure action that accelerated the debt revokes the acceleration
- Homeowner wonSame topicBank of New York v. Silverberg
Bank of N.Y. v. Silverberg, 86 A.D.3d 274 (N.Y. App. Div. 2011)
a plaintiff whose only claim to the loan is an assignment from MERS, which never held the note, lacks standing to foreclose in New York
- Homeowner lostSame topicBoren v. U.S. National Bank Ass'n
Boren v. U.S. Nat'l Bank Ass'n, 807 F.3d 99 (5th Cir. 2015)
a lender may abandon a prior acceleration by giving notice that it seeks less than the full accelerated balance, which restarts the four-year limitations period
- Homeowner lostSame topicAurora Loan Services, LLC v. Taylor
Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355 (2015)
in New York the note, not the mortgage, is the instrument that gives standing to foreclose, and a plaintiff holding the note before suing has standing
- Homeowner lostSame topicMartins v. BAC Home Loans Servicing, L.P.
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249 (5th Cir. 2013)
a mortgage servicer acting for a properly assigned mortgagee may foreclose in Texas without possessing the original note, and an oral promise to modify a large loan is not enforceable
- Partial winSame topicReinagel v. Deutsche Bank National Trust Co.
Reinagel v. Deutsche Bank Nat'l Tr. Co., 735 F.3d 220 (5th Cir. 2013)
a Texas borrower may challenge an assignment of the loan on any ground that renders it void, though not on grounds that make it merely voidable
- Partial winSame topicCulhane v. Aurora Loan Services
Culhane v. Aurora Loan Servs., 708 F.3d 282 (1st Cir. 2013)
a mortgagor may contest the validity of a MERS assignment to the foreclosing entity, although the MERS framework itself is lawful
Related rights
Right to answer the foreclosure lawsuit and be heard
N.Y. C.P.L.R. 320(a)
New York foreclosures go through court. After you are served, you must appear (usually by filing an answer) within 20 days if the papers were handed to you, or 30 days if served another way. Answering lets you raise defenses such as a missing 90-day notice or the lender’s lack of standing.
Read this rightRight to a mandatory settlement conference
N.Y. C.P.L.R. 3408(a)
If you live in the home and the loan is a home loan, the court must hold a settlement conference within 60 days after the lender files proof that you were served. The goal is to look for a solution such as a loan modification. Both sides must negotiate in good faith.
Read this rightThe right to be heard in court, and to speak for yourself
U.S. Const. amend. XIV, § 1Due Process Clause
Due process means that before the government, through a court, takes your property, you must get a meaningful chance to be heard. In federal court, you have a legal right to present your own case without a lawyer. Most state courts also let people represent themselves, under state rules.
Read this rightThe right to real notice before the government takes or sells your home
U.S. Const. amend. XIV, § 1Due Process Clause
Before a state or county sells your property — for example at a tax sale, or through a court foreclosure — the Constitution requires notice that is reasonably likely to actually reach you. If the government knows your address, publishing a notice in the newspaper is not enough. If a mailed notice comes back unclaimed, the government must take extra reasonable steps to reach you, if it practicably can.
Read this rightThe automatic stay: filing bankruptcy pauses most collection
11 U.S.C. § 362(a)
When a bankruptcy case is filed, an "automatic stay" goes into effect right away. It generally stops lawsuits, foreclosure steps, and other collection against you and your property, without anyone needing to ask a judge. Creditors who knowingly violate it can owe damages.
Read this rightChapter 13: catch up on missed mortgage payments over time
11 U.S.C. § 1322(b)(5)
In a Chapter 13 bankruptcy, a plan can let you catch up on missed mortgage payments over a reasonable time (often 3 to 5 years) while you keep paying the regular monthly payment. For your main home, you can use this cure until the home is sold at a foreclosure sale held under state law.
Read this right