“The Actual-Mailing Rule” & Validity of Pre-Mailing RPAPL 1306 Filings: An In-Depth Commentary on Tri-State III, LLC v. Litkowski (2025)

Introduction

Tri-State III, LLC v. Litkowski, 2025 NY Slip Op 03753, decided by the Appellate Division, Second Department, clarifies critical procedural requirements in New York residential mortgage foreclosure actions. At its core, the lawsuit concerns whether the plaintiff mortgagee complied with the statutory notice conditions precedent contained in Real Property Actions and Proceedings Law (RPAPL) §§ 1303, 1304 and 1306 before foreclosing on a Monsey, New York property. Defendants Caren and Nathan Litkowski argued that failures in notice delivery doomed the foreclosure; the Supreme Court (Rockland County) and now the Appellate Division rejected that view.

The decision is noteworthy for two novel holdings: (1) authenticated third-party vendor records showing actual mailing of RPAPL 1304 notices obviate any need to prove the vendor’s ordinary mailing practices (“The Actual-Mailing Rule”), and (2) a proof-of-filing statement submitted to the Department of Financial Services before the RPAPL 1304 notice is mailed, yet within three business days of the mailing date, satisfies RPAPL 1306.

Summary of the Judgment

The Appellate Division unanimously affirmed the order and judgment of foreclosure and sale dated January 9, 2023. Specifically, it upheld:

  • Substitution of Tri-State III, LLC for original plaintiff Bank of America, N.A. (BANA);
  • Summary dismissal of defendants’ affirmative defenses alleging non-compliance with RPAPL 1303 (help-for-homeowners notice), RPAPL 1304 (90-day pre-foreclosure notice), and RPAPL 1306 (filing with the DFS);
  • Confirmation of the referee’s report; and
  • Entry of a judgment directing sale of the property.

Analysis

1. Precedents Cited

  • Citibank, N.A. v. Conti-Scheurer, 172 A.D.3d 17 (2019) – reiterates strict compliance requirement for RPAPL 1304.
  • U.S. Bank N.A. v. Adams, 202 A.D.3d 867 (2d Dep’t 2022) – outlines means of proving mailing: affidavits or standard procedures.
  • U.S. Bank N.A. v. Romano, 231 A.D.3d 1079 (2023) – recognizes vendor-generated mailing records incorporated into a lender’s business records as admissible proof of mailing.
  • PNC Bank, N.A. v. Mone, 231 A.D.3d 977 (2023) – allows process-server affidavit, without notice annexed, to prove RPAPL 1303 compliance.
  • Bank of Am., N.A. v. Colagrande, 171 A.D.3d 1124 (2d Dep’t 2019) – addresses timing and purpose of RPAPL 1306 filings.
  • Numerous other recent cases (Maher, Palomaria, Chiramannil, McFadden, Tehrani) shaping sections 1303-1306 jurisprudence.

2. Legal Reasoning

The court assessed each statutory notice defense sequentially:

a. RPAPL 1304 – The 90-Day Notice

To satisfy §1304 a foreclosing plaintiff must prove that the notice was simultaneously sent by certified/registered and first-class mail to the borrower’s last known address and to the mortgaged premises. Tri-State relied on:

  • Deposition of BANA AVP Zachary Chromiak;
  • “Transaction Detail” printout from TrackRight (mailing vendor LenderLive’s system) showing certified and first-class tracking numbers, dates, fees and USPS status.

Because the printout was incorporated into BANA’s own business records and relied upon in its ordinary course, it qualified as a business record under CPLR 4518(a). The court distinguished between proving actual mailing (acceptable here) and proving mailing through inference from routine practice. Where actual mailing evidence exists, an affidavit from the vendor documenting its ordinary practices is unnecessary. This articulation is the crux of the “Actual-Mailing Rule.”

b. RPAPL 1303 – “Help for Homeowners” Notice

Proof hinged solely on the process-server’s affidavit reciting service of a notice that complied with all statutory formatting (bold 20-point title, bold 14-point text, colored paper, etc.). Recent precedent (Mone) permits reliance on such an affidavit even where the physical notice is not annexed. The defendants offered no contrary evidence; ergo, their defense failed.

c. RPAPL 1306 – Electronic Filing with DFS

Section 1306 demands electronic filing “within three business days of the mailing” required by §1304. Here:

  • Proof-of-filing timestamp: 17 Feb 2011;
  • Notices mailed: 22 Feb 2011.

Although the filing preceded the mailing, the court held it nevertheless “occurred within three business days of the mailing,” embracing a practical approach that looks to a three-day window, regardless of sequence. It emphasized the statutory purpose: early identification of distressed homeowners. The reading therefore validates pre-mailing filings, provided they fall within the three-business-day envelope.

3. Impact of the Decision

  • Streamlined Proof of Mailing – Lenders may now rely on authenticated vendor data alone to establish RPAPL 1304 compliance, reducing the litigation burdens associated with producing vendor witness affidavits.
  • Pre-Mailing RPAPL 1306 Filings Endorsed – By treating filings made before notice mailing as compliant, the court offers lenders operational flexibility and prevents dismissal of actions on hyper-technical timing grounds.
  • Reaffirmation of Process-Server Affidavits – Continues the trend that a properly detailed affidavit suffices to prove delivery of the RPAPL 1303 notice.
  • Borrower Defenses Narrowed – The combined effect narrows avenues for borrowers to contest foreclosures on notice-compliance grounds, unless they can produce affirmative proof negating mailing or service.
  • Potential Statewide Adoption – Given the Second Department’s heavy foreclosure caseload, its holdings often guide other departments; uniform statewide treatment is likely.

Complex Concepts Simplified

  • Condition Precedent – A procedural step that must occur before a lawsuit can proceed. If unmet, the action is subject to dismissal.
  • RPAPL 1303 Notice – A consumer-protection flyer (often pink or light-green paper) explaining foreclosure rights and resources; must accompany the summons & complaint.
  • RPAPL 1304 Notice – A 90-day, dual-mailing letter warning the borrower of default and offering counseling options prior to foreclosure.
  • RPAPL 1306 Filing – Electronic transmission of basic loan and borrower data to the NYDFS so regulators can track foreclosure risk and allocate counseling resources.
  • Business-Records Exception (CPLR 4518) – Allows admission of records made in the regular course of business, provided a qualifying witness authenticates them.
  • Summary Judgment – A procedural device to obtain judgment without trial when no genuine dispute of material fact exists.

Conclusion

Tri-State III, LLC v. Litkowski strengthens lenders’ hands by instituting what can aptly be called the “Actual-Mailing Rule” for RPAPL 1304 compliance and by validating pre-mailing filings under RPAPL 1306. Together with reaffirmed reliance on process-server affidavits for RPAPL 1303, the ruling streamlines foreclosure practice and blunts hyper-technical notice challenges. While the decision does not dilute borrowers’ substantive defenses, it underscores that those defenses must be grounded in concrete evidence, not procedural conjecture. In the broader landscape, this case will likely serve as a citation cornerstone whenever New York courts confront vendor mailing records or the timing of §1306 filings in the years ahead.