Proof of Contractual Default Notices Must Come From the Mailer or Contemporaneous Records: Wilmington Trust, N.A. v. Singh

Introduction

In Wilmington Trust, N.A. v. Singh, 2025 NY Slip Op 04938 (App Div 2d Dept Sept. 10, 2025), the Second Department revisits two recurring pillars of New York residential mortgage foreclosure practice: statutory pre-suit notice under RPAPL 1304 and contractual pre-acceleration notice under the mortgage (typically sections 15 and 22 of the uniform mortgage). The case arises from a foreclosure action on a property in Astoria, Queens, brought by Wilmington Trust, National Association, against borrower Narinder Singh. After the Supreme Court, Queens County, granted the lender summary judgment, struck Singh’s answer, issued an order of reference, and later entered an order and judgment of foreclosure and sale, the borrower appealed.

The Appellate Division dismissed the appeal from the intermediate order as subsumed by the final judgment, but reversed the order and judgment of foreclosure and sale, holding that the lender failed to make a prima facie showing that it properly transmitted the contractual notice of default required by the mortgage. The panel affirmed the lender’s compliance with RPAPL 1304’s “separate envelope” mandate, but found the proof for the contractual notice deficient—especially where the notices were mailed by the lender’s counsel, yet the affidavits were from the loan servicer and were not supported by contemporaneous mailing records or a description of the mailing procedures of the entity that actually mailed the notices.

Summary of the Opinion

• Procedural posture:
  • The borrower appealed from (1) an October 28, 2021 order granting lender’s motion for summary judgment, striking the answer, and granting an order of reference, and (2) a September 6, 2023 order and judgment of foreclosure and sale.
  • The appeal from the intermediate order was dismissed as academic in light of the appeal from the final judgment; the issues raised were reviewed on the appeal from the order and judgment (Matter of Aho; CPLR 5501[a][1]).
• RPAPL 1304 compliance:
  • The lender made a prima facie showing of strict compliance with RPAPL 1304’s “separate envelope” requirement. Including additional, accurate information that advances the statute’s purpose does not violate the “separate envelope” mandate (Bank of Am., N.A. v Kessler; U.S. Bank N.A. v Jeffrey; PNC Bank, N.A. v Mone).
• Contractual notice of default (Mortgage §§ 15 and 22):
  • The lender failed to establish, prima facie, that a notice of default was transmitted in the manner required by § 15 before suit, and thus failed to satisfy a contractual condition precedent under § 22.
  • Deficiencies included: an affidavit of mailing executed nine months after purported mailing and unsupported by contemporaneous documentation; certified mail receipts lacking stamps/postmarks; unsigned domestic return receipts; and no competent proof of the office mailing procedures of the entity that actually mailed the notices (the lender’s counsel).
• Disposition:
  • The Second Department reversed the order and judgment of foreclosure and sale; denied the lender’s motion for summary judgment, to strike the answer, and for an order of reference; and awarded costs to the borrower Singh.

Analysis

Precedents Cited and Their Influence

• CIT Bank, N.A. v Schiffman, 36 NY3d 550 (Ct App 2020):
  • Key principle: A sender can prove mailing either by (a) evidence of actual mailing (e.g., an affidavit of mailing) or (b) proof of a routine office practice and procedure designed to ensure proper addressing and mailing.
  • Application: The court measured the lender’s proof against Schiffman’s two pathways and found it wanting—no reliable evidence of actual mailing or of the mailer’s standard office practice.
• Bank of Am., N.A. v Kessler, 39 NY3d 317:
  • Key principle: RPAPL 1304’s “separate envelope” requirement is not violated by including accurate, relevant information that furthers the statute’s purpose of helping borrowers avoid foreclosure.
  • Application: The court sustained the sufficiency of the lender’s 1304 notices despite additional content, underscoring Kessler’s borrower-protective but pragmatic approach.
• U.S. Bank N.A. v Jeffrey, 222 AD3d 802; PNC Bank, N.A. v Mone, 231 AD3d 977; MTGLQ Invs., L.P. v Daleo, 228 AD3d 929:
  • These Second Department decisions reaffirm strict compliance with RPAPL 1304 as a condition precedent, and apply Kessler to “separate envelope” disputes.
  • Application: They provided the doctrinal backdrop for upholding the lender’s RPAPL 1304 compliance here.
• Citibank, N.A. v Conti-Scheurer, 172 AD3d 17:
  • Key principle: Mailing may be established by proof of a standard office practice designed to ensure proper addressing and mailing.
  • Application: The court emphasized that such proof must come from someone familiar with the mailer’s procedures and must meaningfully describe the process.
• U.S. Bank N.A. v Reddy, 220 AD3d 967; Heartwood 2, LLC v DeBrosse, 197 AD3d 1152; Wilmington Trust, N.A. v Meyerhoeffer, 219 AD3d 549:
  • Key principles: Where counsel—not the servicer—mails the notices, an affiant must be familiar with counsel’s mailing practices; conclusory affidavits that fail to describe a standard office mailing procedure are insufficient.
  • Application: The servicer’s affiant lacked the requisite familiarity with counsel’s mailing practices and failed to describe a procedure designed to ensure proper mailing.
• Matter of Siegel v New York State Tax Comm’n, 137 AD2d 954; Glen Travel Plaza v Anderson Equip. Corp., 122 AD2d 327:
  • Key principle: Affidavits asserting mailings, executed long after the event and without contemporaneous documentation, are weak proof of mailing.
  • Application: The court treated the nine-month-later affidavit, unaccompanied by mailing logs, postmarks, or signed receipts, as insufficient evidence of mailing or delivery.
• U.S. Bank Trust, N.A. v Solomon, 2025 NY Slip Op 04681:
  • Referenced as a compare (cf.), suggesting examples of adequate proof where contemporaneous documentation or proper office procedure proof was supplied.

Legal Reasoning

The Second Department bifurcated its analysis between statutory and contractual preconditions to foreclosure, while also addressing procedural appellate rules.

• Appellate Procedure (Matter of Aho; CPLR 5501[a][1]):
  • An appeal from an intermediate order terminates upon entry of a final judgment; review of issues decided in that order is available on appeal from the judgment. The court dismissed the appeal from the October 2021 order but reviewed its issues via the appeal from the September 2023 order and judgment.
• RPAPL 1304 Compliance:
  • Standard: Strict compliance is a condition precedent to foreclosure. The statute requires 90-day notice sent by both certified/registered mail and first-class mail, “in a separate envelope from any other mailing or notice.”
  • Holding: The lender satisfied the “separate envelope” mandate. Relying on Kessler, the court reiterated that accurate, relevant supplemental information included with the 1304 notice does not violate the separate-envelope rule if it furthers the statutory purpose of informing borrowers about options to avoid foreclosure.
• Contractual Notice of Default (Mortgage §§ 15 and 22):
  • Section 22 typically requires that the lender accelerate the debt only after giving a “notice of default” that specifies the default, cure amount and date, and certain borrower rights. Section 15 governs the method of giving notice, deeming notice sent when mailed by first-class mail or when actually delivered if sent by other means.
  • Proof Pathways (Schiffman): The lender may establish mailing by (a) direct proof of actual mailing, or (b) proof of a routine office practice and procedure designed to ensure mailing to the correct address.
  • Defects Identified:
    • Affidavit of mailing (from a non-mailing entity) executed nine months later and unsupported by contemporaneous documentation (e.g., mailing logs, USPS receipts with postmarks): insufficient to prove mailing.
    • Certified mail receipts were not stamped or postmarked, and return receipts were unsigned: insufficient to establish actual delivery.
    • The servicer’s affiant did not show familiarity with the lender’s counsel’s mailing practices (counsel apparently did the mailing), and did not describe any standard office procedures designed to ensure proper addressing and mailing.
  • Result: Without competent proof of mailing or delivery consistent with § 15, the lender failed to prove compliance with the contractual condition precedent in § 22. Consequently, summary judgment, striking of the answer, and the order of reference were improper.

Impact and Practical Implications

Wilmington Trust v. Singh reinforces—and sharpens—existing standards in three key ways:

• Separation of statutory and contractual conditions:
  • Even where a lender strictly complies with RPAPL 1304, a foreclosure action can still fail at the summary judgment stage if the lender cannot also prove contractual compliance with the mortgage’s notice-of-default provisions. The statutory and contractual notice regimes are independently enforced.
• Who must attest and what must be shown:
  • If the lender’s counsel, a mailing vendor, or an entity other than the affiant’s employer actually mailed the notice, the affidavit must either come from that mailer or from an affiant who is demonstrably familiar with that mailer’s standard office mailing procedures—and must describe those procedures in detail.
  • Servicer affidavits that recite mailings “by counsel” without showing familiarity with counsel’s mailing protocols are vulnerable.
• The premium on contemporaneous documentation:
  • Affidavits created months after the fact, standing alone, will not carry the lender’s prima facie burden absent contemporaneous proof (e.g., USPS postmarked receipts, signed green cards, mailing logs, vendor manifests, internal batch reports, or bar-coded tracking consistent with the mailing event).

For lenders and servicers:

• Adopt evidentiary-ready mailing practices for contractual notices: maintain first-class mailing logs, USPS Form 3877 (for certified), vendor manifests, and digital tracking reports; secure signed green cards when applicable; and archive counsel’s mailing certifications contemporaneously.
• Coordinate affidavits: ensure the affiant has personal knowledge or is familiar with the mailer’s routine office practices, and that the affidavit describes the steps that ensure correct addressing and mailing.
• When counsel mails the notices: obtain an affidavit from counsel’s mailing clerk or records custodian, or a properly authenticated business-records packet showing the mailing workflow and proof of mailing/delivery.

For borrowers and defense counsel:

• Scrutinize the lender’s proof of the § 22 notice: look for missing postmarks, unsigned return receipts, delayed affidavits without supporting records, and affiants lacking knowledge of the mailer’s procedures.
• Plead both RPAPL 1304 and contractual-notice defenses: lenders often satisfy one but not the other; either defect can defeat summary judgment.

Complex Concepts Simplified

• Condition precedent:
  • A legal requirement that must be fulfilled before a party can enforce a right. In foreclosure, both RPAPL 1304 notice and contractual notice of default are conditions precedent. If unmet, foreclosure cannot proceed.
• RPAPL 1304 “separate envelope” rule:
  • The 90-day pre-foreclosure notice must be sent in an envelope separate from any other mailing or notice. Under Kessler, including accurate, helpful content relevant to avoiding foreclosure does not violate this rule.
• Mortgage § 22 (uniform mortgage):
  • Requires a pre-acceleration notice that tells the borrower about the default, cure amount and deadline, potential acceleration, and certain rights. It is a contractual condition precedent.
• Mortgage § 15 (notice method clause):
  • Specifies how notices are deemed “given”—typically when mailed by first-class mail to the borrower’s “notice address,” or when actually delivered if sent by other means. Lenders must prove compliance with this method.
• Prima facie showing on summary judgment:
  • The moving party’s initial burden to present evidence that, if uncontroverted, would entitle it to judgment as a matter of law. In foreclosure, this includes proof of note/mortgage, default, and satisfaction of statutory and contractual conditions precedent.
• Proof of mailing:
  • Can be shown by (a) direct proof of actual mailing (e.g., an affidavit from the person who mailed it, contemporaneous USPS receipts), or (b) evidence of a routine office practice designed to ensure proper addressing and mailing, described by someone familiar with the procedure.
• Order of reference:
  • A court order appointing a referee to compute the amount due and to report whether the mortgaged premises can be sold in parcels. It typically follows summary judgment for the lender.
• CPLR 5501(a)(1) and Matter of Aho:
  • On appeal from a final judgment, interlocutory orders that necessarily affect the final judgment are reviewable. A direct appeal from such interlocutory orders is dismissed as academic.

What the Court Did—and Did Not—Decide

• Did:
  • Affirm RPAPL 1304 compliance with the separate-envelope and content standards.
  • Hold that the lender failed to prove contractual notice of default in accordance with the mortgage, reversing summary judgment and the foreclosure judgment.
• Did not:
  • Hold that the lender could never prove contractual notice—only that it failed to do so on this record at the summary judgment stage.
  • Resolve any other defenses or issues not necessary to the disposition.

Practice Checklist: Proving Contractual § 22 Notice

• Identify the mailer: servicer, counsel, or vendor.
• Affidavit from the mailer (or someone familiar with the mailer’s procedures).
• Describe the routine office mailing procedure in detail:
  • Document generation, address verification, envelope preparation, postage application, batching, USPS pickup/drop, and retention of proofs.
• Attach contemporaneous records:
  • USPS postmarked certified receipts or Form 3877, mailing logs, vendor manifests, tracking data, and signed return receipts where applicable.
• Authenticate business records properly.
• Ensure consistency with § 15 (first-class mailing to the notice address) and with § 22 content requirements.

Conclusion

Wilmington Trust, N.A. v. Singh underscores a critical lesson in New York foreclosure practice: compliance with RPAPL 1304 does not substitute for compliance with the mortgage’s independent notice-of-default requirements. Where counsel or another third party actually mails the § 22 notice, lenders must present either contemporaneous, objective proof of mailing/delivery or an affidavit from a knowledgeable witness who can describe the mailer’s standard office procedures designed to ensure proper addressing and mailing. Affidavits executed long after the event, unsupported by contemporaneous records, and lacking familiarity with the mailer’s practices do not meet the prima facie burden.

The decision harmonizes with Schiffman’s proof-of-mailing framework and Kessler’s pragmatic approach to RPAPL 1304, while tightening evidentiary expectations for contractual notices. Going forward, foreclosure plaintiffs would be well-served by embedding evidentiary rigor into their notice processes—particularly when delegating mailings to counsel or vendors—to avoid summary judgment setbacks and potential reversals at the appellate level.