RPAPL 1304 Requires Separate 90-Day Notices to Each Borrower; Jointly Addressed Single-Envelope Notice Warrants Dismissal and Supports Renewal After Yapkowitz

1. Introduction

Case: HSBC Bank USA, N.A. v. Palmore, 2026 NY Slip Op 03152 (App. Div. 2d Dep’t May 20, 2026).
Parties: Plaintiff-lender/foreclosing party HSBC Bank USA, National Association (respondent) vs. borrower-defendants Heather Palmore and Helisse D. Palmore (appellants).
Core issue: Whether HSBC satisfied the statutory pre-foreclosure notice condition precedent under RPAPL 1304 when it sent a single 90-day notice that was jointly addressed to both borrowers and (as asserted) mailed in a single envelope, and whether the borrowers could obtain relief through renewal based on a subsequent change/clarification in decisional law.

The action was commenced in 2013 to foreclose a mortgage on property in Wyandanch. Years later, summary judgment and an order of reference were granted to HSBC (October 13, 2020), leading to a referee’s computation and ultimately a judgment of foreclosure and sale (September 12, 2023). The Second Department reversed, holding that RPAPL 1304 was not satisfied and that renewal was warranted in light of intervening appellate authority.

2. Summary of the Opinion

  • The appeal from the May 22, 2023 order was dismissed as a direct appeal because entry of the foreclosure judgment terminated that right, though the issues were reviewed on the appeal from the judgment.
  • The order and judgment of foreclosure and sale was reversed insofar as appealed from.
  • The court held HSBC failed to comply with RPAPL 1304 because the 90-day notice was jointly addressed to both borrowers rather than being separately mailed to each borrower.
  • The defendants were entitled to leave to renew based on Wells Fargo Bank, N.A. v Yapkowitz (decided after the 2020 orders), which clarified that separate notices are required.
  • Upon renewal, the court vacated the prior orders granting summary judgment/order of reference, denied HSBC’s dispositive motion, granted defendants’ prior cross-motion, and effectively required dismissal of the complaint insofar as asserted against them.

3. Analysis

3.1 Precedents Cited

Appellate procedure / reviewability

  • Matter of Aho, 39 NY2d 241 (1976): Cited for the rule that once a final judgment is entered, the right to directly appeal from a prior intermediate order terminates. The Second Department applied this to dismiss the direct appeal from the May 22, 2023 order, while still reviewing the issues on the appeal from the foreclosure judgment.
  • CPLR 5501 (a) (1): Provides that an appeal from a final judgment brings up for review non-final orders that necessarily affect the final judgment. This is the vehicle that allowed the court to address the RPAPL 1304 and renewal issues notwithstanding dismissal of the direct appeal.

RPAPL 1304 as a strict condition precedent; burden of proof

  • Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2019): Quoted for the principle that strict compliance with RPAPL 1304 is a condition precedent to commencing a foreclosure action.
  • U.S. Bank N.A. v Nahum, 232 AD3d 715 (2024): Cited for the proposition that the plaintiff bears the burden of establishing satisfaction of this condition precedent.

Separate-envelope rule for multiple borrowers under RPAPL 1304

  • Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126 (2021): The pivotal authority. The court emphasized that Yapkowitz held “for the first time” in that Department that “the mailing of a 90-day notice jointly addressed to two or more borrowers in a single envelope is not sufficient” and that the plaintiff must separately mail a 90-day notice to each borrower.
  • Wells Fargo Bank, N.A. v Welz, 239 AD3d 693 (2025) and HSBC Bank USA, N.A. v Schneider, 216 AD3d 1148 (2023): Cited as consistent applications of the Yapkowitz principle, reinforcing that the separate-mailing requirement is now settled Departmental law.
  • HSBC Bank USA, N.A. v Bott, 227 AD3d 782 (2024) and HSBC Bank USA, N.A. v DiBenedetti, 205 AD3d 687 (2022): Used to support the conclusion that, where it is undisputed that a jointly addressed notice was sent (rather than individually addressed notices in separate envelopes), RPAPL 1304 is not satisfied and the foreclosure cannot proceed.

Renewal based on change/clarification in decisional law

  • Sharan v Christiana Trust, 219 AD3d 1549 (2023) and Dinallo v DAL Elec., 60 AD3d 620 (2009): Cited for the rule that a motion for leave to renew is an appropriate vehicle to seek relief from a prior order based on a change in the law, including a clarification of decisional law—precisely what Yapkowitz represented relative to the 2020 orders.
  • CPLR 2221 (e) (2): Statutory anchor for renewal based on new facts or a change in the law.

Relationship to Court of Appeals authority on RPAPL 1304

  • Bank of Am., N.A. v Kessler, 39 NY3d 317 (2023): HSBC argued the separate-envelope rule conflicted with Kessler. The Second Department rejected that contention, quoting Kessler to characterize the rule as a “workable rule” that balances lender/borrower practicalities while advancing RPAPL 1304’s statutory purpose.

3.2 Legal Reasoning

  1. RPAPL 1304 is mandatory and strictly construed. The court began from the settled premise (via Citibank, N.A. v Conti-Scheurer) that RPAPL 1304 compliance is a condition precedent, and the plaintiff must prove it (via U.S. Bank N.A. v Nahum).
  2. Jointly addressed, single-envelope notice is legally insufficient. Applying Wells Fargo Bank, N.A. v Yapkowitz and its progeny, the court treated the form of mailing as substantive: each borrower must receive a separately addressed 90-day notice, mailed separately, as a prerequisite to suit.
  3. Renewal was procedurally proper and outcome-determinative. Because the dispositive 2020 orders preceded Yapkowitz, the defendants could seek renewal based on the intervening “first time” decisional clarification. The court held the Supreme Court should have granted renewal and revisited the prior rulings under the now-clarified standard.
  4. No conflict with the Court of Appeals’ approach. The court specifically addressed and rejected the plaintiff’s attempt to use Bank of Am., N.A. v Kessler to avoid the separate-envelope requirement, viewing the rule as consistent with the statutory purpose and administrable in practice.
  5. Remedy: vacatur and dismissal rather than letting the foreclosure proceed. Once RPAPL 1304 noncompliance was established, the foundational predicate for the action was missing; thus the summary judgment, order of reference, referee confirmation, and foreclosure judgment could not stand.

3.3 Impact

  • Operational compliance standard for lenders/servicers (Second Department). The decision reinforces a bright-line requirement: where there are multiple “borrowers,” sending a single jointly addressed 90-day notice is insufficient. Compliance systems must generate and mail separate, individually addressed RPAPL 1304 notices (typically in separate envelopes) before suit.
  • Litigation leverage for borrowers in older cases. The opinion underscores that defendants may use renewal to reopen earlier adverse rulings when a later case (like Wells Fargo Bank, N.A. v Yapkowitz) materially clarifies the governing standard, potentially undoing years of foreclosure litigation and even post-referee judgments.
  • Increased scrutiny of mailing proofs. Plaintiffs should expect heightened examination of “proofs of mailing,” envelope practices, and addressing details—because the defect is not merely technical; it is treated as failure of a condition precedent requiring denial of foreclosure relief.
  • Remedial consequences can be severe. Even after an order of reference, referee computation, and entry of a foreclosure judgment, RPAPL 1304 defects can unwind the process—highlighting that condition-precedent compliance must be correct at commencement.

4. Complex Concepts Simplified

RPAPL 1304 “90-day notice”
A statutorily required warning letter that must be sent at least 90 days before starting a home loan foreclosure, intended to give borrowers time and information to seek help and avoid foreclosure.
Condition precedent
A legal prerequisite that must be satisfied before a lawsuit can properly be started. If not met, the case can be dismissed even if the borrower defaulted.
Strict compliance
Courts require exact adherence to the statute’s notice requirements, not “substantial compliance.” Small deviations (like the wrong manner of addressing/mailing to multiple borrowers) can be fatal.
Summary judgment
A ruling made without trial because the court concludes there is no material factual dispute and one side is entitled to win as a matter of law.
Order of reference / referee’s report
In many New York foreclosure cases, a referee is appointed to compute the amount due. The plaintiff later seeks confirmation of that computation and entry of a foreclosure judgment.
Motion to renew
A request to revisit an earlier order due to new facts or a change/clarification in the law. Here, the “new” development was a later appellate decision clarifying RPAPL 1304’s mailing requirements.

5. Conclusion

HSBC Bank USA, N.A. v. Palmore solidifies two practical rules in Second Department foreclosure practice: (1) RPAPL 1304 requires separate, individually addressed 90-day notices to each borrower—not a jointly addressed notice mailed in a single envelope; and (2) defendants may obtain renewal of earlier dispositive foreclosure orders when an intervening decision (notably Wells Fargo Bank, N.A. v Yapkowitz) clarifies the governing legal standard. The decision’s broader significance is its reaffirmation that RPAPL 1304 is enforced as a strict gatekeeping statute: noncompliance defeats foreclosure relief even at the judgment stage.