Borrowers May Not First Challenge RPAPL 1304 Mailing Proof on Appeal: Commentary on Deutsche Bank Natl. Trust Co. v. Mone

1. Introduction

In Deutsche Bank Natl. Trust Co. v. Mone, 2025 NY Slip Op 06984 (2d Dept Dec. 17, 2025), the Appellate Division, Second Department, addressed a recurrent issue in New York residential foreclosure litigation: when and how a borrower may challenge a plaintiff’s compliance with the 90‑day pre‑foreclosure notice requirement of RPAPL 1304.

The majority opinion reaffirms and sharpens an important procedural rule: a borrower’s contention that the foreclosing plaintiff failed to demonstrate strict compliance with the mailing requirements of RPAPL 1304 cannot be raised for the first time on appeal. That contention is treated as unpreserved and not within the “pure question of law on the face of the record” exception. On that basis, the court affirmed an order and judgment of foreclosure and sale.

A detailed dissent by Justice Wooten takes the opposite view: he concludes that RPAPL 1304 compliance was squarely presented to, and decided by, the Supreme Court; that the sufficiency of the plaintiff’s proof presents a pure legal issue already fully crystallized in the record; and that, on the merits, the lender’s evidence of mailing was legally inadequate. He would have reversed and denied summary judgment.

This decision is thus less about the substantive content of RPAPL 1304 and more about appellate preservation—when a borrower has lost the ability, procedurally, to use RPAPL 1304 as a sword against foreclosure. Given the central role of RPAPL 1304 in New York’s foreclosure regime, the majority’s rule in Mone is a significant precedent for practitioners on both sides.

2. Overview of the Case

2.1 Parties and Background

The plaintiff, Deutsche Bank National Trust Company, as trustee, commenced a residential mortgage foreclosure action concerning real property located in Garden City, Nassau County. The defendant–appellant, James F. Mone, was a defendant in that action (apparently the borrower or record owner).

The plaintiff’s complaint alleged that it had complied with RPAPL 1304 by serving the required 90‑day pre‑foreclosure notice. In his answer, Mone asserted various affirmative defenses, including that the plaintiff failed to comply with RPAPL 1304.

2.2 Procedural History

• Plaintiff’s motion for summary judgment and order of reference:
  The plaintiff moved, inter alia, for:
  • summary judgment on the complaint as against Mone,
  • striking Mone’s answer and affirmative defenses, and
  • an order of reference to compute the amount due.
  Mone opposed the motion, but (critically, for the majority) his opposition papers did not specifically argue that the plaintiff’s RPAPL 1304 proof was insufficient.
• Supreme Court orders (April 9, 2018):
  The Supreme Court (Sullivan, J.) granted those branches of the plaintiff’s motion, struck Mone’s answer and affirmative defenses, and appointed a referee to compute. The court expressly found that the plaintiff had established compliance with RPAPL 1304.
• Referee’s report and judgment of foreclosure and sale:
  The plaintiff later moved to confirm the referee’s report and for a judgment of foreclosure and sale. Mone opposed. By order and by a combined order and judgment of foreclosure and sale, both entered July 20, 2022, the Supreme Court granted the plaintiff’s motion, confirmed the report, and directed the sale.
• Appeal:
  Mone appealed from the order and judgment of foreclosure and sale, challenging, among other things, the plaintiff’s proof of compliance with RPAPL 1304 and raising an argument under RPAPL 1301(3).

2.3 Holding of the Appellate Division

The Second Department, in a majority opinion, affirmed the order and judgment of foreclosure and sale insofar as appealed from. The key rulings are:

• RPAPL 1304 compliance challenge unpreserved:
  The court held that Mone’s contention that the plaintiff’s evidentiary submissions failed to demonstrate strict compliance with the service (mailing) requirements of RPAPL 1304 was improperly raised for the first time on appeal. It was therefore not reviewable.
• RPAPL 1301(3) argument unpreserved:
  The defendant’s contention under RPAPL 1301(3) was likewise held to be unpreserved because it, too, was advanced for the first time on appeal.
• Other arguments:
  The court concluded that the parties’ remaining contentions either lacked merit or need not be addressed in light of these determinations.

Justice Wooten dissented, arguing that the RPAPL 1304 compliance issue was reviewable and, on the merits, fatal to the plaintiff’s summary judgment motion. He would have reversed the foreclosure judgment.

3. Summary of the Opinion

3.1 The Majority Opinion

The majority’s reasoning is concise and focused almost exclusively on issue preservation.

As to RPAPL 1304, the court states that the defendant’s contention that the plaintiff’s proof failed to demonstrate strict compliance with the service/mailing requirements is “improperly raised for the first time on appeal,” citing:

• Bank of N.Y. Mellon v Glasgow, 206 AD3d 790 (2d Dept)
• Bank of Am., N.A. v Montagnese, 198 AD3d 850 (2d Dept)

The majority rejects the dissent’s attempt to treat this as a “pure question of law” that may be raised for the first time on appeal. The court distinguishes:

• Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065: the newly-raised issue in that case, although reviewable, did not involve strict compliance with RPAPL 1304’s service requirements.
• HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822:
  • In Ozcan, the court held that the argument that the loan was not a “home loan” covered by RPAPL 1304 was a pure question of law apparent on the face of the record and thus reviewable even though raised for the first time on appeal.
  • However, the court in Ozcan also emphasized that challenges to a plaintiff’s proof of strict compliance with the service requirements of RPAPL 1304 are not reviewable when raised for the first time on appeal.
  • The majority in Mone treats Ozcan as controlling authority against the dissent’s position.

The majority further cites:

• Bank of Am., N.A. v Joerger, 231 AD3d 914 (2d Dept)
• PHH Mtge. Corp. v Celestin, 130 AD3d 703 (2d Dept) (cited with “cf.” to indicate a contrasting fact pattern)

Regarding RPAPL 1301(3), the court simply notes that the defendant’s contention is also improperly raised for the first time on appeal, citing South Point, Inc. v John, 230 AD3d 825, 827 (2d Dept).

Having disposed of the main appellate issues as unpreserved, the majority affirms the judgment of foreclosure and sale, awarding costs to the plaintiff.

3.2 The Dissenting Opinion

Justice Wooten dissents in a lengthy memorandum addressing both preservation and the merits of the RPAPL 1304 argument. He would:

• reverse the order and judgment of foreclosure and sale insofar as appealed from;
• deny those branches of the plaintiff’s summary judgment motion directed at Mone, including the request to strike his answer and affirmative defenses and for an order of reference;
• deny the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale; and
• modify the underlying orders accordingly.

His analysis proceeds in two stages:

1. Reviewability / Preservation: He argues that the RPAPL 1304 compliance issue is reviewable, both because it was “squarely before the court” below and decided there, and because, in any event, the sufficiency of the plaintiff’s RPAPL 1304 proof presents a pure question of law apparent on the face of the record that could not have been avoided if raised earlier.
2. Merits – RPAPL 1304 mailing proof: He concludes that the plaintiff failed to make a prima facie showing of strict compliance with RPAPL 1304’s mailing requirements. In particular, the affidavits submitted by the loan servicer’s employees did not:
   • show personal knowledge of actual mailings;
   • establish a standard office mailing procedure; or
   • annex the business records on which the affiants purportedly relied.
   Without those, and without independent documentary proof such as mailing receipts, the plaintiff did not establish that the 90‑day notice was actually mailed in the manner required by statute.

Because the plaintiff failed to meet its prima facie burden, Justice Wooten applies the familiar rule from Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, that a summary judgment motion lacking a prima facie showing must be denied regardless of the sufficiency of the opposing papers.

4. Precedents and Authorities Cited

4.1 Cases on Preservation and “Pure Question of Law”

• Bank of N.Y. Mellon v Glasgow, 206 AD3d 790 (2d Dept):
  Cited for the proposition that a borrower’s contention that the plaintiff failed to show strict compliance with RPAPL 1304’s service requirements is not reviewable if raised for the first time on appeal. This case is an anchor for the majority’s procedural holding.
• Bank of Am., N.A. v Montagnese, 198 AD3d 850 (2d Dept):
  Also relied upon to hold that similar RPAPL 1304 service-compliance challenges are unpreserved when first presented on appeal. The majority in Mone cites it both on preservation and to reinforce that such issues are not “pure questions of law” under the applicable exception.
• HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822 (2d Dept):
  A foundational decision distinguishing between:
  • the question whether a mortgage loan is a “home loan” so as to bring RPAPL 1304 into play, which is a pure question of law that can be raised for the first time on appeal; and
  • the question whether the plaintiff has demonstrated strict compliance with RPAPL 1304’s mailing requirements, which is not reviewable for the first time on appeal.
  The majority in Mone adopts and applies this distinction.
• Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065 (2d Dept):
  The dissent relies on Dagrin for the proposition that a pure question of law on the face of the record, which could not have been avoided if raised earlier, is reviewable even if new on appeal. The majority responds that the newly-raised issue in Dagrin differed; it did not involve RPAPL 1304 service compliance, so Dagrin cannot override Ozcan and related cases.
• Bank of Am., N.A. v Joerger, 231 AD3d 914 (2d Dept):
  Cited by the majority to support the general rule that RPAPL 1304 service-compliance contentions, when raised for the first time on appeal, are not reviewable.
• PHH Mtge. Corp. v Celestin, 130 AD3d 703 (2d Dept):
  Cited with “cf.” to signal that, under certain fact patterns, RPAPL 1304-related issues might be treated differently. Although the opinion does not detail Celestin, the citation underscores that the majority regards Mone as falling into the settled category where the RPAPL 1304 service issue requires preservation.
• South Point, Inc. v John, 230 AD3d 825 (2d Dept):
  Supports the holding that an RPAPL 1301(3) contention raised for the first time on appeal is unpreserved and not subject to review.
• Hoffman v City of New York, 301 AD2d 573, 574 (2d Dept):
  Cited by the dissent for the basic principle that issues actually raised and decided in the trial court are preserved for appeal.

4.2 Cases on RPAPL 1304 as a Condition Precedent and Summary Judgment Burdens

• Lakeview Loan Servicing, LLC v Swanson, 231 AD3d 801 (2d Dept) and Zarabi v Movahedian, 136 AD3d 895 (2d Dept):
  These cases establish that where the plaintiff alleges in the complaint that it has served an RPAPL 1304 notice, it must, on a motion for summary judgment, prove that allegation by offering sufficient admissible evidence demonstrating strict compliance and the absence of material factual disputes.
• Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232 (2d Dept) and Bank of Am., N.A. v Bittle, 168 AD3d 656 (2d Dept):
  These decisions underscore that if the borrower raises an affirmative defense based on noncompliance with RPAPL 1304, the plaintiff, as the moving party for summary judgment, must make a prima facie showing of strict compliance with RPAPL 1304.
• U.S. Bank N.A. v Nahum, 232 AD3d 715 (2d Dept) and Deutsche Bank Natl. Trust Co. v Palomaria, 230 AD3d 1109 (2d Dept):
  These cases emphasize that strict compliance with RPAPL 1304’s notice requirement is a condition precedent to a residential foreclosure action. A foreclosing plaintiff bears the burden of proving satisfaction of that condition.
• Wells Fargo Bank, N.A. v Rodriguez, 210 AD3d 728 (2d Dept) and JP Morgan Chase v Twersky, 202 AD3d 769 (2d Dept):
  These cases hold that the plaintiff must either:
  • prove strict compliance with RPAPL 1304; or
  • demonstrate that RPAPL 1304 is inapplicable (for example, because the loan is not a covered “home loan”).
• Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985):
  The classic summary judgment rule: if the movant fails to make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied, “regardless of the sufficiency of the opposing papers.” The dissent invokes this to argue that, even if Mone’s opposition was weak or silent on RPAPL 1304, the motion should have been denied once the plaintiff’s proof was found inadequate.
• Wells Fargo Bank, N.A. v Murray, 208 AD3d 924 (2d Dept) and U.S. Bank Trust, N.A. v Chiramannil, 205 AD3d 966 (2d Dept):
  These cases stand for the principle that a movant cannot fix deficiencies in its prima facie showing by submitting new evidence for the first time in reply papers. The dissent uses them to argue that the plaintiff here had one full opportunity—in its moving papers—to lay out sufficient RPAPL 1304 proof, and any deficiency is incurable at the appellate stage.

4.3 Cases on Proof of Mailing and Business Records

• U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757 (2d Dept) and Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2d Dept):
  These decisions explain how a plaintiff can prove compliance with RPAPL 1304’s mailing requirements:
  • by proof of actual mailings (e.g., affidavits of mailing, domestic return receipts with signatures); or
  • by proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, attested to by someone with personal knowledge of that procedure.
• JPMorgan Chase Bank, N.A. v Bonilla, 227 AD3d 788 (2d Dept) and Wilmington Sav. Fund Socy., FSB v Kutch, 202 AD3d 1030 (2d Dept):
  These cases hold that affidavits are insufficient where the affiant neither personally mailed the notices nor has personal knowledge of the office’s standard mailing procedures. This underscores that bare assertions that a notice was mailed, without the supporting details, cannot carry a plaintiff’s burden.
• U.S. Bank N.A. v McQueen, 221 AD3d 1049 (2d Dept) and U.S. Bank Trust, N.A. v Smith, 217 AD3d 899 (2d Dept):
  These decisions stress that when an affiant relies on business records to assert that RPAPL 1304 notices were mailed, the relevant business records must be annexed. The affidavits alone are not sufficient proof.
• Bank of N.Y. Mellon v Gordon, 171 AD3d 197 (2d Dept):
  Famous for the principle, quoted in Mone, that:

  “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.”

• Wells Fargo Bank, N.A. v Moran, 168 AD3d 1128 (2d Dept):
  Cited in Kutch and in the dissent here for the proposition that an “unsubstantiated and conclusory” statement that RPAPL 1304 notices were mailed, unsupported by underlying records or detailed evidence, is insufficient as a matter of law.

5. Detailed Legal Analysis

5.1 Majority’s Legal Reasoning

5.1.1 Framing the Issue

The majority treats the core RPAPL 1304 question as procedural: Is the defendant permitted, on appeal, to argue that the plaintiff’s summary judgment papers failed to demonstrate strict compliance with RPAPL 1304’s mailing requirements, when that specific argument was not made in opposition to the motion in the Supreme Court?

Answering “no,” the court applies a consistent line of its own precedent that distinguishes:

• arguments that:
  • turn on fact-sensitive assessments of the sufficiency of the plaintiff’s particular evidence of compliance with RPAPL 1304’s mailing requirements, and
  • could have been cured or supplemented if raised in the trial court; from
• pure questions of law that:
  • are apparent on the face of the record;
  • do not depend on undeveloped factual issues; and
  • could not have been “avoided” or cured had they been raised earlier.

5.1.2 Why RPAPL 1304 Mailing Proof Is Not a “Pure Question of Law”

The majority relies on Ozcan and similar cases to hold that the present issue—strict compliance with the service requirements of RPAPL 1304—is not a pure question of law:

• Determining whether the plaintiff strictly complied with RPAPL 1304’s mailing requirements (e.g., certified and first-class mail, correct addresses, proper timing) turns on the particular evidence in the record—affidavits, mailing logs, business records, return receipts, etc.
• If, in the trial court, the borrower had argued that the plaintiff’s affidavits were deficient—e.g., for lack of personal knowledge, absence of the underlying records, or inadequate descriptions of office procedure—the plaintiff might have:
  • submitted additional, more detailed affidavits;
  • produced the underlying business records; or
  • offered direct proof of actual mailings.
  In other words, the alleged deficiency was curable had it been timely raised.
• Under New York’s preservation doctrine, issues that could have been addressed and possibly remedied in the trial court cannot be held in reserve and then used for the first time on appeal.

Thus, the majority distinguishes this from the kind of structural or purely legal error that necessarily appears on the face of the record—for example, whether a loan qualifies as a “home loan” under RPAPL 1304, an issue that does not depend on how a party could have supplemented the evidence had the issue been flagged.

5.1.3 Treatment of the Dissent’s Authorities

The dissent invokes Dagrin for the proposition that a pure question of law on the face of the record is reviewable even if first raised on appeal. The majority responds by:

• Noting that the issue in Dagrin was not the same as the RPAPL 1304 service-compliance issue now before the court.
• Emphasizing that Ozcan directly addresses the distinction between RPAPL 1304’s applicability (e.g., “home loan” status) and its service compliance, and that Ozcan holds the latter type of challenge not reviewable if raised for the first time on appeal.

By aligning itself with Ozcan, Montagnese, and Glasgow, the majority signals continuity rather than innovation. It frames the dissent’s view as an attempt to unsettle this established distinction.

5.1.4 RPAPL 1301(3)

The majority applies the same preservation logic to the defendant’s argument under RPAPL 1301(3)—the “one action” rule that generally prevents simultaneous or successive actions for the same mortgage debt. Citing South Point, Inc. v John, the court holds that raising an RPAPL 1301(3) contention for the first time on appeal is procedurally improper.

5.2 The Dissent’s Legal Reasoning

5.2.1 Why RPAPL 1304 Compliance Was “Squarely Before the Court”

Justice Wooten first argues that the RPAPL 1304 compliance issue is not “new” on appeal at all; it was preserved because:

• The plaintiff’s complaint expressly alleged that it complied with RPAPL 1304.
• Mone’s answer asserted an affirmative defense contesting that compliance.
• In support of its summary judgment motion, the plaintiff:
  • submitted affidavits from employees of its loan servicer (Cynthia Wallace and Nicholas J. Raab) attesting that a 90‑day pre‑foreclosure notice was mailed by certified and first-class mail; and
  • in its attorney’s affirmation, expressly argued that it complied with RPAPL 1304.
• The Supreme Court, in its April 9, 2018 order granting summary judgment, explicitly found that the plaintiff had established compliance with RPAPL 1304.

On this basis, the dissent concludes that:

“[T]he issue of the plaintiff’s compliance with RPAPL 1304 was ‘squarely before the court’ (HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 825). … [T]he plaintiff’s compliance with RPAPL 1304 was at issue before and determined by the court, and, therefore, is reviewable on appeal (see Hoffman v City of New York, 301 AD2d 573, 574).”

In other words, once the plaintiff put forward evidence meant to prove RPAPL 1304 compliance and the trial court expressly ruled on that issue, the adequacy of that proof is necessarily open to appellate scrutiny.

5.2.2 “Pure Question of Law on the Face of the Record”

Justice Wooten offers an alternative basis for reviewability even if one accepted that the defendant did not adequately press the RPAPL 1304 issue below:

• On a motion for summary judgment, the movant is required to “lay bare its proof.” The plaintiff did so here by submitting its chosen affidavits and related evidence on RPAPL 1304 compliance.
• Once the plaintiff made its motion, it was not permitted to bolster its prima facie case through new evidence in reply. Therefore, the sufficiency of the plaintiff’s showing is fixed by the moving papers themselves.
• Whether those submissions, as a matter of law, satisfy the statutory standard of “strict compliance” with RPAPL 1304 is a question that depends solely on the contents of the record; nothing further would have changed had the issue been more explicitly raised below.

Accordingly, the dissent characterizes the sufficiency of the plaintiff’s RPAPL 1304 mailing proof as:

“a pure question of law appearing on the face of the record that could not have been avoided if raised at the proper juncture” (Dagrin, 233 AD3d at 1071).

Justice Wooten goes a step further, stating that “[t]o the extent this Court has held otherwise, I submit that those decisions should no longer be followed,” explicitly inviting a reconsideration of prior holdings like Montagnese and Glasgow to the extent they shield RPAPL 1304 service-compliance issues from appellate review when not pressed below.

5.2.3 Merits: Why the Plaintiff Failed to Show Strict Compliance with RPAPL 1304

Turning to substance, the dissent applies well-established Second Department case law on what a plaintiff must show to prove compliance with RPAPL 1304’s mailing requirements:

• RPAPL 1304(1) requires that, at least 90 days before commencing legal action against a borrower on a home loan, the lender or servicer must give a specific pre‑foreclosure notice at the property address and any other address of record.
• RPAPL 1304(2) requires that the notice be sent by:
  • registered or certified mail; and
  • also by first-class mail;
  to the borrower’s last known address and to the mortgaged premises.
• Compliance may be shown either by:
  • proof of actual mailings (e.g., affidavits of mailing, return receipts); or
  • proof of a standard office mailing procedure, sworn to by someone with personal knowledge of that procedure, designed to ensure that items are properly addressed and mailed.

Applying these standards, Justice Wooten finds the plaintiff’s proof wanting:

• Affidavits lacking personal mailing or knowledge of office procedure:
  Wallace and Raab’s affidavits state that a 90‑day notice was sent by certified and first-class mail. But:
  • neither affiant asserts they personally mailed the notice; and
  • neither demonstrates personal knowledge of a “standard office mailing procedure designed to ensure that items are properly addressed and mailed.”
  This renders their statements insufficient under cases like Bonilla and Kutch.
• Failure to annex business records:
  Wallace asserts that, based on her review of business records associated with the loan, the 90‑day notice was mailed. However:
  • she does not annex the referenced business records; and
  • under Gordon and its progeny, it is the business record itself, not the affidavit describing it, that proves the fact of mailing.
  Without those records, her statements are deemed “unsubstantiated and conclusory.”
• No independent mailing receipts or USPS documentation:
  The plaintiff did not attach domestic return receipts or other documentary evidence confirming that the 90‑day notice was actually mailed by certified and first-class mail.

The dissent thus concludes:

“Accordingly, the plaintiff failed to establish, prima facie, that the mailing of the 90-day notices actually occurred. Since the plaintiff failed to satisfy its prima facie burden, it is not necessary to consider whether the defendant, in opposition, raised a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

5.3 Practical and Doctrinal Impact

5.3.1 For Borrowers and Defense Counsel

Mone delivers a clear warning to borrowers and their attorneys in the Second Department:

• It is not enough to include an RPAPL 1304 noncompliance affirmative defense in the answer and then passively assume that the court will police the lender’s proof on its own or that the issue can be robustly litigated for the first time on appeal.
• On a plaintiff’s motion for summary judgment, defense counsel must:
  • explicitly attack the sufficiency of the plaintiff’s RPAPL 1304 proof (e.g., pointing out missing business records, lack of personal knowledge, absence of mailing receipts, defects in office procedure affidavits); and
  • ideally, support such challenges with affidavits and evidentiary submissions of their own.
• Failure to do so may result in the Appellate Division treating any later RPAPL 1304 mailing-compliance arguments as unpreserved, even if the plaintiff’s proof is arguably thin by current Second Department standards.

This shifts part of RPAPL 1304’s protective power from an automatic judicial safeguard into a right that must be vigorously and timely asserted.

5.3.2 For Lenders and Their Counsel

For lenders, Mone is a favorable precedent on the procedural front:

• If the borrower does not specifically challenge RPAPL 1304 service compliance in the trial court, lenders now have strong Second Department authority to argue that any such challenge is forfeited on appeal.
• That said, the dissent’s substantive analysis reflects the continuing strictness with which the Second Department scrutinizes RPAPL 1304 proof when the issue is properly preserved:
  • Affidavits must be detailed and based on personal knowledge of mailing practices or actual mailings.
  • Business records referenced must be annexed.
  • Bare, conclusory attestations are inadequate.

Prudent lender’s counsel should therefore:

• continue to assemble robust RPAPL 1304 mailing proofs in moving papers; and
• be mindful that a future case could present the same evidentiary profile as Mone but with a properly preserved RPAPL 1304 challenge, in which event a court might adopt reasoning similar to Justice Wooten’s and deny summary judgment.

5.3.3 Tension in the Doctrine and the Possibility of Higher Review

Mone highlights an underlying tension in Second Department jurisprudence:

• On one hand, RPAPL 1304 is a consumer-protection statute imposing a condition precedent to residential foreclosures, and the Department has demanded strict, not substantial, compliance.
• On the other hand, Mone and its predecessors insist that challenges to the sufficiency of a plaintiff’s RPAPL 1304 mailing proof are subject to ordinary preservation rules and may be forfeited if not explicitly pressed below.

Justice Wooten’s dissent invites a rethinking of this balance. It stresses that when a lender voluntarily puts its RPAPL 1304 proof in the record and the trial court rules satisfaction of the condition precedent, appellate review should not be foreclosed by a technical preservation rule, especially when the borrower had already pleaded an RPAPL 1304 defense.

Whether the New York Court of Appeals or a future en banc panel of the Second Department will revisit this question remains to be seen. For now, Mone entrenches the existing preservation rule.

6. Complex Concepts Simplified

6.1 RPAPL 1304 – The 90‑Day Pre‑Foreclosure Notice

RPAPL 1304 is a New York statute enacted in response to the foreclosure crisis. For certain home loans (owner‑occupied 1–4 family residences), it requires lenders or their servicers to:

• send a detailed warning notice to the borrower at least 90 days before starting a foreclosure action;
• send it by both certified (or registered) mail and by first-class mail; and
• send it to both the borrower’s last known address and the property address.

The notice must contain specific prescribed language, including information about housing counseling and the risk of foreclosure. Courts describe compliance as a “condition precedent” to bringing a foreclosure action: if the lender fails to comply, the foreclosure action is defective from the outset.

6.2 RPAPL 1301(3) – The “One Action” Rule

RPAPL 1301(3) is part of New York’s “one action” rule for mortgage debt. In general terms, it prevents a lender from:

• maintaining more than one action simultaneously on the same mortgage debt (e.g., a foreclosure and a separate money action); or
• bringing successive actions in a way that unfairly harasses the borrower or circumvents prior decisions.

Borrowers sometimes use RPAPL 1301(3) to argue that a new foreclosure action should be barred because the lender has already brought another related action or obtained other remedies. In Mone, the defendant apparently tried to invoke this statute for the first time on appeal, which the court found improper.

6.3 Condition Precedent

A “condition precedent” is a requirement that must be satisfied before a legal right or action can validly arise. In this context:

• RPAPL 1304 compliance is a condition precedent to filing a residential foreclosure action.
• If the condition is not met—i.e., the lender did not properly send the 90‑day notice—then the foreclosure action is subject to dismissal, even if the borrower is indisputably in default on the loan.

However, as Mone illustrates, the borrower must timely assert and litigate the alleged failure to satisfy that condition, or risk forfeiture of the argument on appeal.

6.4 Summary Judgment and Prima Facie Burden

“Summary judgment” is a procedural device that allows a court to decide a case (or a part of it) without a trial when there is no genuine dispute about the material facts. In New York:

• The party moving for summary judgment (here, the lender) bears the initial burden of making a prima facie showing—that is, producing enough admissible evidence to demonstrate entitlement to judgment as a matter of law if that evidence were uncontradicted.
• Only if the movant meets that burden does the burden shift to the opponent (here, the borrower) to raise a triable issue of fact.
• If the movant fails to meet its prima facie burden, the motion must be denied, regardless of the strength or weakness of the opposition (Winegrad).

The dispute in Mone is partly about whether an appellate court can examine, for the first time on appeal, whether the plaintiff’s RPAPL 1304 proof met this prima facie threshold.

6.5 Affirmative Defense

An “affirmative defense” is a defendant’s assertion that, even if the basic facts alleged by the plaintiff are true, there is some additional reason why the plaintiff should not win (e.g., statute of limitations, waiver, or, here, failure to comply with RPAPL 1304).

In Mone, Mone pleaded noncompliance with RPAPL 1304 as an affirmative defense. The key question became: did that pleading, by itself, preserve an appellate challenge to the sufficiency of the plaintiff’s RPAPL 1304 proof, even when the defendant’s opposition papers did not press the point?

6.6 Order of Reference and Referee’s Report

In New York foreclosure practice:

• An “order of reference” is a court order appointing a referee (often an attorney) to:
  • compute the amount due under the loan (principal, interest, fees, etc.); and
  • often to examine and report whether the mortgaged premises should be sold in one parcel or multiple parcels.
• The referee issues a “referee’s report,” which the plaintiff typically moves to confirm.
• If the court confirms the report, it generally then issues a “judgment of foreclosure and sale,” authorizing the property’s auction.

In Mone, once summary judgment and the order of reference were granted, the process moved to a referee’s computation and ultimately a judgment of foreclosure and sale, which Mone appealed.

6.7 Pure Question of Law Apparent on the Face of the Record

New York appellate courts recognize a limited exception to the preservation requirement: an issue may be reviewed even if not raised below when it presents:

• a pure question of law (no factual development needed);
• that is apparent on the face of the record; and
• that could not have been “avoided” had it been raised at the proper juncture (i.e., the party could not have cured it with different evidence or strategies).

Examples include purely legal interpretations of statutes or contractual clauses, or a jurisdictional defect apparent from the pleadings. The controversy in Mone is whether the sufficiency of the plaintiff’s RPAPL 1304 mailing proof falls within or outside this exception.

6.8 Strict Compliance vs. Substantial Compliance

“Strict compliance” means literal and exact adherence to statutory requirements. With respect to RPAPL 1304, the Second Department has frequently held that:

• minor deviations from mailing requirements (e.g., using only first-class mail, incorrect addresses, or an incorrect form of notice) are fatal;
• “substantial compliance” (being “close enough”) does not suffice, because the statute is remedial and must be enforced according to its terms.

This strictness makes the quality of the plaintiff’s proof of mailing crucial; hence the prominence of the RPAPL 1304 issue and the importance of Mone’s preservation holding.

7. Conclusion

Deutsche Bank Natl. Trust Co. v. Mone is best understood as a procedural case with significant practical impact on substantive foreclosure rights. The Second Department confirms that:

• Challenges to a foreclosing plaintiff’s proof of strict compliance with RPAPL 1304’s mailing requirements cannot be raised for the first time on appeal, because they are not treated as pure questions of law on the face of the record.
• Likewise, RPAPL 1301(3) defenses cannot debut on appeal.

Justice Wooten’s dissent, however, signals serious concerns. It emphasizes:

• the centrality of RPAPL 1304 as a condition precedent and a consumer protection device;
• the summary judgment principle that courts should independently ensure that the movant has made a prima facie showing, regardless of opposition; and
• the view that, where the plaintiff’s proof is already thoroughly in the record and the trial court has ruled on RPAPL 1304 compliance, appellate review should not be barred by preservation doctrine.

On the merits, the dissent highlights the demanding evidentiary standards the Second Department has imposed for proving RPAPL 1304 mailing—standards that, in its view, the plaintiff in Mone did not meet. While the majority did not engage those merits, the dissent’s analysis stands as a cautionary roadmap for both borrowers and lenders when RPAPL 1304 issues are properly preserved.

In the broader legal landscape, Mone solidifies a line of Second Department cases that tether the effectiveness of RPAPL 1304 to vigilant advocacy at the trial level. For now, in that Department, RPAPL 1304 remains a powerful but procedurally fragile protection: it can prevent a foreclosure entirely, but its benefits may be lost if borrowers and their counsel do not timely and explicitly challenge the plaintiff’s proof.