RPAPL 1304 Compliance When Using Third‑Party Mailing Vendors: Tracking Numbers and RPAPL 1306 Filings Are Insufficient

Commentary on Nationstar Mortgage, LLC v. Ricks (2025 NY Slip Op 04728, Appellate Division, Second Department)

Introduction

Nationstar Mortgage, LLC v. Ricks is a Second Department foreclosure decision that both crystallizes and enforces strict evidentiary requirements for lenders seeking summary judgment where RPAPL 1304 pre-foreclosure notices were sent “by and through” agents or third-party vendors. The case involves a residential mortgage on Staten Island and pits the lender, Nationstar Mortgage, LLC, against borrowers Joseph and Melissa Ricks.

Two core issues reached the Appellate Division: (1) whether the plaintiff established, on summary judgment, strict compliance with the 90-day notice requirement under RPAPL 1304 and the contractually required notice of default under the mortgage (sections 15 and 22), particularly where the mailings were performed by outside agents/vendors; and (2) whether interest should be tolled for a portion of the COVID-19 pandemic period based on the Governor’s executive orders and equitable considerations.

The decision is notable because it clarifies what lenders must do when relying on third-party mailing vendors to prove RPAPL 1304 compliance and reaffirms that COVID-era executive orders did not toll private financial obligations such as interest accrual in foreclosure actions absent case-specific equitable grounds.

Summary of the Judgment

• The Appellate Division reversed, insofar as appealed from, the order and judgment of foreclosure and sale. It denied:
  • Those branches of the plaintiff’s motion for summary judgment against the answering defendant, Joseph Ricks; and
  • The plaintiff’s request for an order of reference; and
  • The plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale.
• The Court held the plaintiff failed to make a prima facie showing of strict compliance with RPAPL 1304 and failed to prove transmission of a contractually required notice of default under the mortgage (sections 15 and 22).
• It affirmed the denial of the defendants’ cross-motion to toll interest from March 20, 2020, through November 3, 2020, finding that the executive orders tolled time limits prescribed by law, not private obligations, and that the record did not justify an equitable curtailment of interest.

Detailed Analysis

1) Precedents Cited and Their Influence

The Second Department’s analysis relies on, and harmonizes, a line of cases emphasizing strict compliance with RPAPL 1304 and the necessity of admissible, foundational proof under CPLR 4518 when business records are used—especially records generated by third parties.

• Strict compliance as a condition precedent: PNC Bank, N.A. v Mone (231 AD3d 977) and U.S. Bank N.A. v Jeffrey (222 AD3d 802) reaffirm that RPAPL 1304 compliance is a condition precedent; a lender must strictly comply before commencing foreclosure.
• Proof of mailing standards: Homebridge Fin. Servs., Inc. v Mauras (201 AD3d 890) sets out the accepted forms of proof: actual mailing evidence (e.g., certified mail receipts) or an affidavit describing a standard office mailing procedure sworn to by someone with personal knowledge.
• Conditions precedent in the mortgage itself: U.S. Bank N.A. v Tiburcio (197 AD3d 528) reminds that, beyond statutory requirements, plaintiffs must show compliance with any contractual preconditions (here, mortgage sections 15 and 22 relating to notice of default and acceleration).
• No prescribed record set; CPLR 4518 governs admissibility: U.S. Bank N.A. v Pickering-Robinson (197 AD3d 757) and Citigroup v Kopelowitz (147 AD3d 1014) hold that plaintiffs may rely on any business records that meet CPLR 4518’s criteria and that actually evidence the facts asserted.
• Vendor records and “agent” mailings require a CPLR 4518 foundation: U.S. Bank N.A. v Nahum (232 AD3d 715), US Bank N.A. v Okoye-Oyibo (213 AD3d 718), and U.S. Bank N.A. v Adams (202 AD3d 867) underscore that when mailings are performed by third-party vendors, the affiant must identify those vendors/agents, demonstrate familiarity with their mailing procedures, and lay a foundation showing the vendor records were incorporated into, and relied upon in, the plaintiff’s business. Bank of N.Y. Mellon v Gordon (171 AD3d 197) articulates the standard for admitting third-party records via incorporation and reliance under CPLR 4518.
• Tracking numbers and RPAPL 1306 filing are not substitutes: Nahum and Deutsche Bank Natl. Trust Co. v Palomaria (230 AD3d 1109) hold that tracking numbers on notice copies do not, by themselves, prove mailing; JPMorgan Chase Bank, N.A. v Gershfeld (187 AD3d 1003) and Wells Fargo Bank, N.A. v Lewczuk (153 AD3d 890) clarify that an RPAPL 1306 “Proof of Filing” is distinct from, and cannot substitute for, proof of RPAPL 1304 mailing compliance.
• Equitable interest during COVID period: Brash v Richards (195 AD3d 582) explains the Governor’s executive orders tolled “time limits prescribed by law” (e.g., litigation deadlines), while Prestige Deli & Grill Corp. v PLG Bedford Holdings, LLC (213 AD3d 962) confirms the orders did not toll private obligations. Deutsche Bank Trust Co. Ams. v Knights (231 AD3d 1016) and GMAC Mtge., LLC v Yun (206 AD3d 798) set out the discretion to adjust interest in equity based on case-specific factors like wrongful conduct or unexplained delay.

Together, these authorities anchor the Ricks court’s insistence that lenders must present vendor-specific, admissible proof of RPAPL 1304 mailing and cannot rely on generalized attestations or auxiliary filings to meet their prima facie burden.

2) The Court’s Legal Reasoning

a) RPAPL 1304 proof where mailings are done “by and through” agents/vendors

The plaintiff’s affiant, an employee of the servicer, described the servicer’s “standard office mailing procedures” but acknowledged that the actual mailings were performed “by and through [the plaintiff’s] agents.” The affidavit failed to:

• Identify the agents or vendors who did the mailing;
• Attest to personal knowledge of the agents’/vendors’ mailing procedures; and
• Explain the relationship with the third-party vendor or establish that the vendor’s records were integrated into and relied upon in the plaintiff’s regular course of business.

Under Nahum, Okoye-Oyibo, Adams, and Gordon, that gap is fatal. Where a lender relies on vendors to execute critical statutory mailings, it must offer an affidavit from someone with personal knowledge of the vendor’s procedures or otherwise lay a CPLR 4518 foundation showing that:

• The vendor created the records in the regular course of its business;
• The lender incorporated those records into its own business records and relies on them in the regular course of business; and
• The affiant is familiar with both the lender’s and the vendor’s practices sufficient to explain and authenticate the records and the mailing process.

Because the plaintiff did not satisfy those requirements, it failed to make out a prima facie case of RPAPL 1304 compliance on summary judgment.

b) Tracking numbers and RPAPL 1306 filing do not prove RPAPL 1304 mailing

The “tracking numbers” printed on copies of the notices and the RPAPL 1306 “Proof of Filing Statement” were insufficient, standing alone, to prove proper mailing under RPAPL 1304. The court cites Nahum, Palomaria, Gershfeld, and Lewczuk for the propositions that:

• Tracking numbers do not, in and of themselves, establish that statutory notices were actually mailed in the statutorily prescribed manner; and
• RPAPL 1306’s filing requirement is separate and cannot substitute for RPAPL 1304’s mailing requirement.

c) Contractual notice of default under mortgage sections 15 and 22

Beyond the statute, the mortgage itself typically requires a default notice (section 22 of the uniform instrument) and dictates how notices must be given (section 15). Because the plaintiff’s affidavit was defective for the same reasons discussed above, the plaintiff also failed to show it sent the contractual default notice in conformity with the mortgage—another condition precedent to acceleration and foreclosure (see Tiburcio; Heartwood 2, LLC v DeBrosse).

d) Summary judgment consequence

On summary judgment, a plaintiff’s failure to establish a prima facie case mandates denial regardless of the sufficiency of opposing papers. The court therefore denied summary judgment and the order of reference, and—consequently—denied confirmation of the referee’s report and entry of a judgment of foreclosure and sale.

e) Interest tolling during COVID-19

The borrowers sought to toll interest accrual for the period March 20, 2020, through November 3, 2020, invoking the Governor’s executive orders. The Second Department held:

• The executive orders tolled “time limits prescribed by law” (e.g., statutes of limitations and litigation deadlines) but did not toll private financial obligations, including note interest (Brash; Prestige Deli).
• Foreclosure being an equitable action, courts may adjust interest based on wrongful conduct or unexplained delay (Knights; Yun), but the record here did not demonstrate equities warranting relief.

3) Impact and Prospective Effects

Ricks reinforces a bright-line evidentiary message: when RPAPL 1304 notices are sent by third‑party vendors, lenders must present vendor‑specific, CPLR 4518‑compliant proof. The decision is likely to have several concrete effects:

• Vendor affidavits as standard practice: Servicers will need affidavits from the vendor (or a servicer affiant with demonstrated familiarity with the vendor’s procedures) identifying the vendor, describing its mailing processes, and authenticating vendor records.
• Rejection of “proxy” proof: Generic references to “agents” or to a servicer’s internal procedures will not carry the day when outside entities do the mailing. Plaintiffs must bridge the evidentiary gap between their records and vendor-created documents.
• Document management upgrades: Expect more diligent record integration policies: adoption-of-records protocols, standardized mail logs showing dual mailing (certified/registered and first-class), address verification, and USPS receipts or equivalent system outputs tied to specific mailings.
• Litigation timelines: More motions may be denied without prejudice, prompting re‑motion with improved proofs or settlement leverage shifts. Trial courts can anticipate more granular evidentiary submissions at the summary judgment stage.
• Interest claims during pandemic periods: Borrowers will find little traction relying solely on COVID-19 executive orders for interest relief. Equitable adjustments will depend on fact‑intensive showings of creditor misconduct or dilatory prosecution.

Complex Concepts Simplified

• RPAPL 1304: New York’s 90‑day pre‑foreclosure notice statute. Before starting a foreclosure, the lender must send a specific warning notice at least 90 days in advance, by both registered or certified mail and first‑class mail, to the borrower’s last known address (and, by statute, in separate envelopes). Strict compliance is required.
• RPAPL 1306: A separate requirement that, within three business days of mailing the 1304 notice, the lender file certain information with the state. A “Proof of Filing” under 1306 does not prove the 1304 notices were properly mailed.
• CPLR 4518 (Business Records Exception): Allows business records to be admitted if made in the regular course of business, it was the regular course of business to make them, and they were made contemporaneously. When using third‑party vendor records, the proponent must show those records were integrated into and relied on in its own business, and the witness must be familiar with the vendor’s record‑keeping practices.
• Standard office mailing procedure: A routine, reliable process ensuring items are correctly addressed, stamped, and mailed. An affiant must describe the process with personal knowledge—especially when someone else (like a vendor) actually performs the mailing.
• Order of reference: A court order appointing a referee to compute the amount due and report whether the property can be sold in parcels. It typically follows a plaintiff’s prima facie showing and precedes a judgment of foreclosure and sale.
• Mortgage sections 15 and 22: In standard Fannie Mae/Freddie Mac uniform instruments, section 22 requires a default notice before acceleration, and section 15 prescribes how notices must be given. Compliance is a condition precedent to foreclosure.
• Condition precedent: A legal requirement that must be satisfied before a party can enforce a right—in foreclosure, compliance with RPAPL 1304 and with any contractual notice provisions.
• Prima facie case on summary judgment: The moving party must present sufficient admissible evidence to establish each element of its claim as a matter of law. If it fails, the motion is denied regardless of the opponent’s papers.

Practical Guidance

For Lenders and Servicers

• When using a mailing vendor:
  • Identify the vendor by name in affidavits.
  • Provide an affidavit from a person with personal knowledge of the vendor’s mailing procedures (either the vendor’s employee or a servicer employee with adequate familiarity).
  • Lay a CPLR 4518 foundation showing the vendor’s records were made in the regular course, incorporated into, and relied upon in the servicer’s business.
  • Attach vendor mail logs, system screenshots, and USPS documentation linking to the specific borrower notices, showing both certified/registered and first-class mailings.
• Do not rely solely on:
  • Tracking numbers printed on notices; or
  • RPAPL 1306 “Proof of Filing.”
• Contractual default notice:
  • Prove compliance with mortgage sections 15 and 22 with the same rigor as RPAPL 1304, including proof of transmission by the required method and to the proper address(es).
• Interest during pandemic:
  • Anticipate that courts will not toll interest based solely on executive orders; maintain a clean prosecution record to minimize equitable reductions.

For Borrowers and Defense Counsel

• Scrutinize the plaintiff’s affidavits for:
  • Unidentified “agents” or vendors;
  • Absence of personal knowledge of vendor procedures;
  • Lack of CPLR 4518 foundation for vendor records;
  • Reliance on tracking numbers or RPAPL 1306 filings as substitutes for proof of mailing.
• Challenge both statutory and contractual conditions precedent (RPAPL 1304 and mortgage sections 15/22).
• For interest relief, marshal evidence of creditor misconduct or unexplained delay, not merely pandemic-era disruption.

For Trial Courts

• Require vendor-specific proof when mailings are outsourced; generic “standard office practice” affidavits are insufficient if they do not reach the vendor’s processes.
• Distinguish RPAPL 1304 proof from RPAPL 1306 filings; the latter cannot cure defects in the former.
• Evaluate equitable interest adjustments based on concrete, case-specific factors.

What the Decision Does Not Decide

• The Appellate Division’s decretal paragraph expressly denies summary judgment, order of reference, and confirmation of the referee’s report; it does not address in its disposition the branch of relief granting leave to enter a default judgment against Melissa Ricks. Practically, however, without valid proof of conditions precedent, the foreclosure cannot proceed to sale.
• The court did not reach the defendants’ remaining contentions, leaving other defenses or issues to be litigated on remand.

Conclusion

Nationstar Mortgage, LLC v. Ricks is a forceful reiteration that RPAPL 1304 demands strict proof, particularly when a lender relies on third‑party mailing vendors. Affidavits that reference mailings performed “by and through agents” must identify those agents and establish personal knowledge of their mailing procedures; if records from a vendor are used, the proponent must satisfy CPLR 4518 by demonstrating incorporation and reliance in the ordinary course. Tracking numbers and RPAPL 1306 proofs of filing do not, on their own, demonstrate proper mailing. Parallel rigor is required to prove compliance with contractual default notices under sections 15 and 22 of the mortgage.

On interest accrual, Ricks aligns with prior Second Department authority that the pandemic’s executive orders did not toll private obligations, and that any equitable interest relief hinges on concrete findings of creditor wrongdoing or undue delay—not on generalized pandemic disruptions.

The decision provides a clear operational roadmap for foreclosure litigants: lenders must upgrade evidentiary practices around vendor mailings, and borrowers should continue to scrutinize RPAPL 1304 proofs closely. In the broader legal context, Ricks cements a maturing doctrinal consensus in the Second Department and will likely shape summary judgment practice in New York foreclosure actions for years to come.