Separate RPAPL 1304 Notice Is Required for Each Borrower, and an Order Entered on an Improperly Served Motion Is a Nullity

Introduction

Nationstar Mtge., LLC v Dimura addresses two recurring procedural requirements in residential mortgage foreclosure litigation: proper service of motion papers and strict compliance with the 90-day notice requirement of RPAPL 1304.

Nationstar Mortgage, LLC’s predecessor commenced the foreclosure action in 2009 against borrowers Michael Dimura and Jacqueline Dimura, among others. The borrowers answered and asserted several defenses, including the lender’s failure to comply with RPAPL 1304. After the Supreme Court enforced an alleged settlement agreement in 2018, Nationstar moved to settle a proposed order and judgment of foreclosure and possession. That motion was granted without opposition in October 2020.

The borrowers later established that the motion papers had been mailed to an incorrect address for their attorney. They also relied on Nationstar’s own documents showing that a single RPAPL 1304 notice had been jointly addressed to both borrowers. The principal questions were whether the 2020 order should be vacated for lack of proper motion notice and whether a jointly addressed 90-day notice satisfied RPAPL 1304.

Summary of the Opinion

The Second Department affirmed the order of the Supreme Court, Orange County, with costs. It upheld three related determinations:

1. The October 2020 order was properly vacated because the underlying motion had been mailed to an incorrect address for the borrowers’ attorney. Improper service deprived the court of jurisdiction to entertain that motion and rendered the resulting order a nullity.
2. The foreclosure complaint was properly dismissed insofar as asserted against Michael and Jacqueline Dimura because Nationstar’s predecessor sent one jointly addressed RPAPL 1304 notice rather than separately mailing a notice to each borrower.
3. Because the complaint was properly dismissed against the borrowers, Nationstar was not entitled to confirmation of the referee’s report or a judgment of foreclosure and sale.

Although the borrowers characterized part of their cross-motion as one for leave to renew under CPLR 2221(e), the appellate court held that the correct procedural mechanism was vacatur under CPLR 5015(a)(4). The court construed the application according to its substance rather than its label.

Analysis

1. Renewal Was Not the Proper Procedure

CPLR 2221(e) permits renewal based on newly presented facts that would change the prior result, accompanied by a reasonable justification for not presenting those facts earlier, or based on a change in law. The court cited U.S. Bank N.A. v Cuencas and HSBC Bank USA, N.A. v Krebs for these requirements.

The October 2020 order, however, had been entered after the borrowers defaulted in opposing Nationstar’s motion. Under BSD 253, LLC v Wilmington Sav. Fund Socy., FSB and U.S. Bank, N.A. v Blagman, the proper way to challenge an order entered on default is a motion to vacate under CPLR 5015(a), not a motion to renew.

Relying additionally on Ernest v St. Juste, the court construed the borrowers’ request as a CPLR 5015(a) motion. This reflects a practical rule: a court may look past an incorrect procedural label where the substance of the application clearly seeks relief available under the proper statute.

2. Improper Service Deprived the Court of Jurisdiction Over the Motion

CPLR 5015(a)(4) authorizes relief from an order entered without jurisdiction. Braylovskaya v Skazka Rest. was cited for this statutory principle.

Under CPLR 2211, a motion on notice is made when the notice of motion or order to show cause is served. CPLR 2103(b) generally requires papers in a pending action to be served on the represented party’s attorney, including by mailing them to the address designated by that attorney.

The court relied on U.S. Bank N.A. v Nakash and its quotation from Paulus v Christopher Vacirca, Inc. for the decisive rule: improper service of motion papers supplies a complete excuse for the failure to oppose and deprives the court of jurisdiction to entertain the motion. The resulting order is a nullity subject to vacatur under CPLR 5015(a)(4). U.S. Bank Trust, N.A. v Johnson reinforced that conclusion.

The borrowers made a prima facie showing that Nationstar mailed the motion papers to an incorrect address for their then-counsel. Wilmington Sav. Fund Socy., FSB v Sheikh and Wells Fargo Bank, N.A. v Whitelock supported the conclusion that evidence of mailing to the wrong attorney address establishes defective service and lack of notice.

Nationstar did not raise a factual dispute. Its contention that the former attorney might nevertheless have received the papers was raised for the first time on appeal and therefore was not preserved, as illustrated by Wells Fargo Bank v Islam. The contention also failed on the merits under Wilmington Sav. Fund Socy., FSB v Sheikh and MTGLQ Invs., L.P. v White.

Importantly, the jurisdictional defect concerned the court’s authority to decide the particular unnoticed motion. It did not mean that the court lacked jurisdiction over the entire foreclosure action from its inception.

3. RPAPL 1304 Requires Strict and Borrower-Specific Compliance

RPAPL 1304 requires a lender, assignee, or mortgage loan servicer to provide prescribed notice at least 90 days before commencing an action to foreclose a qualifying home loan. The notice must be sent both by registered or certified mail and by first-class mail to the borrower’s last known address. The court cited Wells Fargo Bank, N.A. v Davidson for these statutory requirements.

Under Citibank, N.A. v Conti-Scheurer and Wells Fargo Bank, N.A. v Welz, strict compliance with RPAPL 1304 is a condition precedent to commencing the foreclosure action. Substantial compliance is insufficient.

The controlling borrower-specific rule came from Wells Fargo Bank, N.A. v Yapkowitz: when two or more borrowers are entitled to notice, the lender may not place one jointly addressed notice in a single envelope. It must separately mail a 90-day notice to each borrower. U.S. Bank N.A. v Zakarin confirmed that requirement.

Michael and Jacqueline Dimura relied on documents Nationstar itself had previously submitted. Those documents included a copy of a single 90-day notice jointly addressed to both borrowers. Under HSBC Bank USA, N.A. v Schneider, Wells Fargo Bank, N.A. v Yapkowitz, and U.S. Bank N.A. v Zakarin, that proof established noncompliance. Nationstar failed to raise a factual question, so dismissal was warranted.

4. Effect on the Requested Foreclosure Judgment

Once the court vacated the October 2020 order and dismissed the complaint against the borrowers, Nationstar had no basis for confirmation of the referee’s report or entry of a judgment of foreclosure and sale. The court cited Bank of N.Y. Mellon v Levinson for this consequence.

Precedents Cited and Their Role

• U.S. Bank N.A. v Cuencas and HSBC Bank USA, N.A. v Krebs: stated the statutory requirements for renewal under CPLR 2221(e).
• BSD 253, LLC v Wilmington Sav. Fund Socy., FSB and U.S. Bank, N.A. v Blagman: established that vacatur under CPLR 5015(a), rather than renewal, is the proper remedy for an order entered on default.
• Ernest v St. Juste: supported construing the mislabeled application as a motion to vacate.
• Braylovskaya v Skazka Rest.: addressed relief from an order entered without jurisdiction under CPLR 5015(a)(4).
• U.S. Bank N.A. v Nakash, Paulus v Christopher Vacirca, Inc., and U.S. Bank Trust, N.A. v Johnson: established that an order resulting from an improperly served motion is a nullity.
• Wilmington Sav. Fund Socy., FSB v Sheikh, Wells Fargo Bank, N.A. v Whitelock, and MTGLQ Invs., L.P. v White: supported the finding that mailing to an incorrect attorney address constitutes defective service.
• Wells Fargo Bank v Islam: supported rejection of an argument raised for the first time on appeal.
• Wells Fargo Bank, N.A. v Davidson: summarized RPAPL 1304’s timing, content, and dual-mailing requirements.
• Citibank, N.A. v Conti-Scheurer and Wells Fargo Bank, N.A. v Welz: characterized strict RPAPL 1304 compliance as a condition precedent.
• Wells Fargo Bank, N.A. v Yapkowitz, U.S. Bank N.A. v Zakarin, and HSBC Bank USA, N.A. v Schneider: required separate notices to separately named borrowers.
• Bank of N.Y. Mellon v Levinson: supported denial of a foreclosure judgment after the underlying complaint could not proceed.

Complex Concepts Simplified

Motion to renew

A request to reconsider an earlier motion because of new facts or a change in law. It is not ordinarily the proper method for challenging an order entered after a party failed to oppose.

Vacatur under CPLR 5015(a)(4)

A procedure for setting aside an order or judgment entered without the necessary jurisdiction. An order based on an unserved motion may be treated as legally void.

Prima facie showing

Evidence sufficient to establish a fact unless the opposing party produces evidence creating a genuine dispute.

Condition precedent

A requirement that must be completed before a legal action may validly begin. RPAPL 1304 notice is such a prerequisite in covered foreclosure actions.

Strict compliance

Exact adherence to the statute’s requirements. A lender cannot excuse a defective RPAPL 1304 notice by arguing that its efforts were close enough or that a jointly addressed notice likely reached both borrowers.

Nullity

An order without legal effect because the court lacked authority to grant it under the circumstances.

Potential Impact

The decision underscores that procedural compliance is indispensable in foreclosure litigation. Lenders and servicers must verify that motion papers are sent to the attorney’s designated address and retain reliable proof of proper service. A favorable order may be vacated years later if it was obtained on an improperly served motion.

The opinion also reinforces the Second Department’s borrower-by-borrower interpretation of RPAPL 1304. For co-borrowers, lenders should prepare and mail separate notices in separate envelopes through each required mailing method. A single jointly addressed notice cannot support foreclosure, even if both borrowers reside at the same address.

Finally, the decision shows that borrowers may establish noncompliance by relying on documents previously submitted by the lender. Foreclosure plaintiffs therefore must review their own submissions carefully, as those records may conclusively demonstrate a statutory defect.

Conclusion

Nationstar Mtge., LLC v Dimura combines two strict procedural rules. First, proper service of motion papers is jurisdictional to the determination of that motion; an order entered without such service is subject to vacatur as a nullity. Second, RPAPL 1304 requires a separate 90-day notice to each borrower, and one jointly addressed notice does not satisfy the statutory condition precedent.

The decision confirms that neither the age of a foreclosure action nor an earlier default in opposing a motion cures defective service or noncompliance with RPAPL 1304. Because both defects were established here, dismissal against the borrowers and denial of a foreclosure judgment were required.