Non-Note-Signing Borrowers Are Entitled to RPAPL 1304 Notice: Foreclosure Requires Competent Proof of Mailing and Standing

1. Introduction

This mortgage foreclosure appeal addresses three distinct requirements: notice to a borrower under RPAPL 1304, the foreclosing plaintiff’s standing, and regulatory filing under RPAPL 1306. The Second Department reversed a judgment of foreclosure and sale because Bank of America, N.A., failed to establish its entitlement to summary judgment on notice and standing. It nevertheless upheld the denial of the borrower’s request to dismiss the action for noncompliance with RPAPL 1306.

The decision’s central substantive holding is that a homeowner may qualify as a “borrower” entitled to RPAPL 1304 notice even without signing the underlying promissory note. Here, Alice McNamara signed the mortgage as a borrower, was identified as such in the instrument, and agreed to pay the amounts due under the note. Those contractual features brought her within the statute’s protection.

The opinion principally applies established precedent rather than announces a wholly new doctrine. Its importance lies in bringing together borrower classification, strict proof of statutory mailing, competent evidence of note possession, and the different requirements governing the RPAPL 1306 filing.

2. Background and Procedural History

On January 23, 2006, Michael McNamara, Sr., executed a $400,000 note in favor of American Brokers Conduit. A mortgage on residential property in Babylon secured the debt. Both Michael and his wife, Alice, executed the mortgage, but Alice did not sign the note.

The bank alleged that payments due on May 1, 2009, and thereafter were not made. Michael died on September 9, 2010. In January 2014, Bank of America commenced this foreclosure action against Alice and other defendants. Alice asserted affirmative defenses that included lack of standing and failure to comply with RPAPL 1304.

Alice died while the appeals were pending. Robert Maddox, as executor of her estate, was substituted as defendant and appellant.

3. Summary of the Opinion

The court unanimously reached five principal conclusions:

1. Alice was entitled to RPAPL 1304 notice. Her failure to sign the note did not overcome the mortgage’s identification of her as a borrower and her agreement to pay the amounts due.
2. The bank did not establish strict compliance with RPAPL 1304. Its affidavit did not demonstrate personal knowledge of mailing or adequately describe a reliable mailing procedure. Although certified-mail evidence was submitted, adequate proof of timely first-class mailing was missing.
3. The bank did not establish standing. The record did not show that an endorsed note was attached to the complaint, and the affidavit’s assertions about precommencement possession depended on unidentified, unproduced business records.
4. Alice was not entitled to dismissal under RPAPL 1306. A filing containing information about one borrower was sufficient, and the bank’s proof of filing concerning Michael’s estate established compliance on the record presented.
5. Review proceeded through the June 2025 judgment. Direct appeals from the intermediate orders were dismissed, but their issues remained reviewable on the appeal from that judgment. The appeal from the already-vacated March 2020 judgment was academic.

The court reversed the June 2025 judgment, denied the bank’s challenged requests for summary judgment, dismissal of the two affirmative defenses, and an order of reference, modified the July 2018 orders accordingly, and vacated the March 2020 order confirming the referee’s report and granting foreclosure relief. It awarded one bill of costs to Maddox.

The court did not dismiss the foreclosure action. Failure to establish entitlement to summary judgment is not the same as a conclusive determination that the bank lacked standing or never sent the required notice.

4. Analysis: Legal Reasoning

A. Borrower status depends on the mortgage’s operative language, not solely on the note

RPAPL 1304 requires a lender, assignee, or mortgage loan servicer to give the borrower the prescribed notice at least 90 days before commencing the covered legal action. The bank argued that Alice was not entitled to that notice because she had not signed the note.

The court rejected that argument by examining the mortgage. Alice executed it as “Borrower,” appeared as a borrower on its first page, and agreed to pay the amounts due under the note. Those provisions supported treating her as a borrower for statutory notice purposes.

The distinction is important: entitlement to preforeclosure notice and personal liability on the debt are different questions. A mortgage provision stating that a non-note-signing party is not personally obligated to repay does not necessarily eliminate that party’s statutory borrower status when other operative terms identify the party as a borrower and impose the relevant payment undertaking.

The holding should not be expanded into a rule that every person who signs any mortgage automatically qualifies. The court relied on the particular contractual features present here.

B. Both required mailing methods must be established

RPAPL 1304(2) requires registered or certified mail and first-class mail to the statutory addresses. These are cumulative requirements, not alternatives. Evidence of certified mailing alone therefore does not establish full compliance.

The bank relied on an affidavit from its officer, Nichole Renee Williams. She stated, based on her review of business records, that a 90-day notice had been served on Alice by certified and first-class mail. Her affidavit nevertheless failed to establish either recognized evidentiary route:

• Personal knowledge or competent proof of the actual mailings; or
• A sufficiently described standard office mailing procedure, supported by personal knowledge of that procedure, designed to ensure proper addressing and mailing.

Williams did not attest to personal knowledge of the mailings and did not specifically describe procedures ensuring dispatch through both required mailing methods. The separate certified-mail evidence did not cure the absence of adequate proof that first-class mailing occurred within the statutory timeframe.

The court’s conclusion concerned the bank’s proof. It did not establish as an ultimate factual matter that no first-class notice had ever been sent.

C. Standing required competent proof of rights in the note when suit began

Because Alice challenged standing, the bank had to establish that it was the holder or assignee of the note when it commenced the action. A written assignment of the note or its physical delivery before commencement can establish the necessary transfer; the mortgage follows the debt.

The record did not show that a copy of the endorsed note was attached to the complaint when the action began. The bank therefore could not rely on such an attachment to establish its position on this record. Its alternative reliance on Williams’s affidavit also failed.

Williams’s assertions about the bank’s precommencement possession of the note rested on unidentified and unproduced business records. The court treated those assertions as inadmissible hearsay. Her status as a bank officer did not itself supply competent proof of historical possession.

The decision thus distinguishes a potentially valid substantive claim to enforce the note from admissible evidence establishing that claim at the relevant time. The bank’s problem was not merely whether it could produce a note eventually, but whether its motion established the necessary status when the action commenced.

D. The moving party’s initial burden controlled the result

A party seeking summary judgment must first present sufficient admissible evidence establishing entitlement to judgment as a matter of law. Only then does the opposing party need to demonstrate a material factual dispute.

The bank failed that initial burden on both RPAPL 1304 compliance and standing. Consequently, its challenged motion branches had to be denied without regard to the sufficiency of Alice’s opposition papers. A weak opposition could not repair deficiencies in the bank’s own evidence.

E. RPAPL 1306 imposes a different obligation

RPAPL 1306 requires a filing with the superintendent of financial services within three business days after mailing the RPAPL 1304 notice. The required information includes specified borrower details and information concerning the loan and amount claimed due. Compliance is a condition precedent to foreclosure.

The defendant argued that the bank needed filings concerning both Alice and Michael’s estate. The court rejected that position because controlling precedent permits a filing containing information about only one borrower.

The bank submitted a proof-of-filing statement indicating that the RPAPL 1306 notice concerned Michael’s estate. The court accepted that evidence as establishing prima facie compliance, and Alice failed to raise a triable issue. Her cross-motion for dismissal was therefore properly denied.

This result does not weaken RPAPL 1304. The statutes serve related but distinct functions: a sufficient regulatory filing does not substitute for required borrower notice, and deficient proof of borrower notice does not necessarily establish a deficient regulatory filing. Nor does the decision establish a general rule governing every filing involving a deceased borrower; it resolves the filing issue on this record.

F. Final-judgment review preserved the substantive issues

The right to appeal directly from the intermediate orders ended upon entry of the June 2025 final judgment. Under CPLR 5501(a)(1), however, the relevant issues raised by those orders were brought up for review on the appeal from that judgment.

The March 2020 foreclosure judgment presented a different issue: it had already been vacated in April 2024. Its appeal was therefore academic. The appellate dismissals did not signify approval of the underlying rulings; the court reviewed and corrected the relevant rulings through the operative final judgment.

5. Precedents Cited and Their Influence

A. Appellate procedure

• Matter of Aho, 39 NY2d 241, supplied the rule terminating direct appeals from intermediate orders upon entry of final judgment. Together with CPLR 5501(a)(1), it explained why dismissal of those appeals did not prevent review of their substantive issues.

B. Strict notice compliance and permissible mailing evidence

• Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126, established the governing premise: strict compliance with RPAPL 1304 is a condition precedent, and the foreclosure plaintiff bears the burden of proving it. This placed the evidentiary obligation on the bank.
• Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232, supplied the statutory mailing framework—registered or certified mail together with first-class mail to the required addresses. It explains why proof of only certified mailing was insufficient.
• U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757, quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, identified the permissible evidentiary routes: proof of actual mailing or a knowledgeable affidavit describing a reliable office mailing procedure. Those alternatives provided the standard against which Williams’s affidavit was measured.
• Wilmington Trust, N.A. v Meyerhoeffer, 219 AD3d 549; Bank of N.Y. Mellon v Sae Young Min, 201 AD3d 854; and Freedom Mtge. Corp. v Granger, 188 AD3d 1163, supported rejecting mailing proof that lacked both personal knowledge and a specific description of procedures ensuring proper dispatch. They reinforced the inadequacy of a generalized records-based assertion.
• US Bank N.A. v McQueen, 221 AD3d 1049, supported the particular conclusion that certified-mail proof did not establish the separately required timely first-class mailing.
• Federal Natl. Mtge. Assn. v Raja, 211 AD3d 692, supported the resulting determination that the bank had not established prima facie compliance with RPAPL 1304.

C. Borrower status despite the absence of a note signature

• HSBC Bank USA, N.A. v Kalenborn, 215 AD3d 930, quoting Deutsche Bank Natl. Trust Co. v Weininger, 206 AD3d 882, supplied the decisive contractual analysis. A homeowner identified as a borrower in the mortgage who agrees in that capacity to pay the note amounts qualifies for RPAPL 1304 protection notwithstanding ambiguity created by language disclaiming personal liability for non-note signers.
• Green Tree Servicing, LLC v Helmsorig, 227 AD3d 1053, provided additional support for applying that borrower-status principle to Alice. Together, these authorities defeated the bank’s attempt to make the note signature dispositive.

D. Standing and proof of note possession

• US Bank N.A. v Bochicchio, 179 AD3d 1133, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d 197, established that a plaintiff must prove standing when the defendant raises it. These authorities made standing an affirmative component of the bank’s motion burden.
• U.S. Bank N.A. v McEntee, 176 AD3d 1136, supplied the substantive test: the plaintiff must be the holder or assignee of the underlying note when the action commences.
• Deutsche Bank Natl. Trust Co. v Motzen, 207 AD3d 434, quoting Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, explained that written assignment or physical delivery of the note before commencement can transfer the obligation, with the mortgage accompanying the debt.
• Deutsche Bank Natl. Trust Co. v Crosby, 201 AD3d 878, supported both aspects of the evidentiary analysis: the record’s failure to establish an endorsed-note attachment at commencement and the insufficiency of the affidavit offered to prove holder status.
• Wells Fargo Bank, N.A. v Carrington, 221 AD3d 746; HSBC Bank USA, N.A. v Boursiquot, 204 AD3d 980; and Wells Fargo Bank, NA v Oziel, 196 AD3d 618, supported treating the assertions based on unidentified and unproduced records as inadmissible hearsay. They explain why the affidavit did not establish precommencement possession.

E. Summary judgment

• Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, required denial of the bank’s motion once its initial showing failed, regardless of the opposing papers. This rule supplied the procedural consequence of the notice and standing deficiencies.

F. RPAPL 1306 filing

• HSBC Bank USA, N.A. v Bermudez, 175 AD3d 667, explained the filing’s timing and minimum informational requirements and recognized compliance as a condition precedent to foreclosure.
• Hudson City Sav. Bank v Seminario, 149 AD3d 706, reinforced the condition-precedent status of RPAPL 1306, confirming that the issue was substantive rather than an inconsequential administrative formality.
• CIT Bank N.A. v Schiffman, 36 NY3d 550, supplied the controlling answer to the multiple-borrower argument: a filing containing information about one borrower is sufficient under the statute.
• Federal Natl. Mtge. Assn. v Hollien, 198 AD3d 615, provided additional support for that single-borrower filing rule. These authorities justified rejecting the contention that separate filings for Alice and Michael’s estate were necessary.

6. Potential Impact

For lenders and servicers

The decision underscores the need to examine mortgage language before excluding a non-note-signing homeowner from the RPAPL 1304 notice process. It also emphasizes that foreclosure motion papers must separately establish each required mailing method and the plaintiff’s rights in the note at commencement.

Affidavits should do more than announce conclusions derived from business records. Where mailing procedures or historical possession are central, the evidence must provide the relevant knowledge, procedural detail, and admissible record support.

For borrowers and estates

The opinion confirms that statutory notice protection may extend beyond persons personally obligated on the note. It also demonstrates the effectiveness of identifying specific gaps in the plaintiff’s initial proof. At the same time, borrowers cannot assume that every successful challenge to the bank’s summary judgment motion entitles them to dismissal.

For future foreclosure litigation

The decision reinforces three boundaries: borrower notice differs from personal debt liability; proof of certified mailing differs from proof of full statutory mailing compliance; and RPAPL 1304 notice differs from RPAPL 1306 filing. It is likely to be most useful as a consolidated application of established rules to recurring evidentiary problems, rather than as a broad expansion of foreclosure defenses.

7. Complex Concepts Simplified

Condition precedent

A legal requirement that must be satisfied before an action may properly begin. The court treated compliance with both RPAPL 1304 and RPAPL 1306 this way.

Standing

The plaintiff’s legal entitlement to enforce the debt. Here, the bank needed to prove that it held or had been assigned the note when it filed suit.

Prima facie showing

The moving party’s initial evidentiary showing sufficient to establish its claim unless answered by contrary evidence.

Summary judgment

A decision without trial when the evidence establishes entitlement to judgment and no material factual dispute requires trial.

Hearsay and business records

Records may support admissible evidence when applicable requirements are met. Here, merely recounting what unidentified, unproduced records supposedly showed did not competently establish possession of the note.

Order of reference

An order appointing a referee to perform specified tasks, here calculating the amount owed. The bank was not entitled to that relief on its deficient motion.

Academic appeal

An appeal that no longer presents a live issue requiring relief. The appeal from the March 2020 judgment became academic because that judgment had already been vacated.

8. Conclusion

Bank of Am., N.A. v Maddox confirms that a homeowner’s contractual status under the mortgage can trigger RPAPL 1304 protection despite the absence of a note signature. It also demands competent, separate proof of statutory mailing and standing before foreclosure summary judgment may be granted.

The result is deliberately limited: the foreclosure judgment was reversed and the bank’s challenged motion relief denied, but the action was not dismissed. The bank’s successful RPAPL 1306 showing illustrates why each statutory and evidentiary requirement must be assessed independently.