RPAPL 1304 Strict-Compliance Requires the Statutory Notice Language in Effect When the Foreclosure Is Commenced

1. Introduction

Case: Bank of Am., N.A. v Thomas, 2026 NY Slip Op 04485 (App Div, 2d Dept, July 22, 2026).
Parties: Plaintiff-respondent Bank of America, N.A. vs. defendants-appellants James Thomas and Delories Thomas (mortgagors).
Nature of action: Mortgage foreclosure in Queens County.

The appeal centers on a procedural “renewal” sequence driven by intervening appellate authority and, more importantly, on whether the lender could obtain summary judgment and an order of reference when the borrowers challenged the content of the lender’s RPAPL 1304 90-day pre-foreclosure notice. The Second Department ultimately reaffirmed that even where a lender can make a prima facie showing of mailing, disputes (and deficiencies) over the statutory language in the notice can defeat dispositive relief.

2. Summary of the Opinion

The Second Department:

  • Dismissed in part the appeal as to the caption-amendment renewal issues because defendants were not aggrieved (citing CPLR 5511 and Mixon v TBV, Inc., 76 AD3d 144, 156-157).
  • Held the Supreme Court correctly granted the plaintiff leave to renew based on a change in law (via the Court of Appeals decision in Bank of Am., N.A. v Kessler, 39 NY3d 317), but erred on the merits upon renewal.
  • Modified the order to adhere to the earlier February 7, 2023 determination that (upon renewal) denied those branches of the plaintiff’s motion seeking summary judgment, to strike answers, and for an order of reference—because defendants raised a triable issue of fact regarding strict compliance with RPAPL 1304’s then-applicable statutory language.
  • Awarded one bill of costs to the defendants Thomas payable by the plaintiff.

3. Analysis

3.1 Precedents Cited

A. Appellate standing / “aggrieved” requirement

The court dismissed part of the appeal under CPLR 5511 because a party may appeal only if “aggrieved.” The decision relies on Mixon v TBV, Inc., 76 AD3d 144, 156-157, for the proposition that a party is not aggrieved by an order that does not adversely affect its rights. Practically, this pruned issues relating to the caption amendment from appellate review.

B. Motions to renew based on changes or clarifications in law

The decision restates the renewal standard under CPLR 2221(e)(2): renewal must show a change in law that would change the prior determination. The court quotes and applies:

  • Bank of Am., N.A. v Levada, 241 AD3d 1510, 1511
  • Pryce v Nationstar Mtge., LLC, 224 AD3d 857, 858
  • U.S. Bank N.A. v Hall-Davis, 232 AD3d 696, 697

Critically, the court reiterates the rule that “a clarification of the decisional law is a sufficient change in the law to support renewal” (quoting U.S. Bank N.A. v Hall-Davis, as cited through Bank of Am., N.A. v Levada).

C. Proof of mailing and RPAPL 1304 compliance

The court applies the now-familiar “actual mailing or routine office practice” framework, quoting:

  • Wells Fargo Bank, N.A. v Kohli, 241 AD3d 1402, 1403
  • U.S. Bank N.A. v Romano, 231 AD3d 1079, 1080

Under those authorities, a lender may establish mailing through an affidavit of mailing/service or proof of a standard business practice for creating, addressing, and mailing RPAPL 1304 notices.

D. Statutory amendments to RPAPL 1304 and strict compliance

The court emphasizes the Legislature’s December 20, 2016 amendment to RPAPL 1304 (L 2016, ch 73, part Q, § 6), and cites U.S. Bank N.A. v Chrismas-Beck, 219 AD3d 534, 537, on the effect of amendments to required notice language. The opinion details the amendment’s key changes, including:

  • Opening line changed from “YOU COULD LOSE YOUR HOME” to “YOU MAY BE AT RISK OF FORECLOSURE”.
  • Addition of “IMPORTANT” language explaining the borrower’s right to remain in the home until a court order, that the notice is not an eviction notice, and that foreclosure has not yet been commenced.

The court further notes the language was in effect at the time this action was commenced in July 2018 (referencing L 2018, ch 58, part HH, §§ 1, 6).

3.2 Legal Reasoning

A. Renewal was procedurally proper—yet did not change the substantive outcome

The plaintiff met the threshold for renewal because Bank of Am., N.A. v Kessler, 39 NY3d 317 (the Court of Appeals reversal of Bank of Am., N.A. v Kessler, 202 AD3d 10) constituted a “change in the law” capable of affecting the prior renewal determination. The Second Department therefore agreed renewal was properly granted.

But renewal is only the gateway. Upon reaching the merits, the Second Department held the Supreme Court should have adhered to its earlier post-renewal ruling (February 7, 2023) denying summary judgment and an order of reference—because the defendants demonstrated a triable issue of fact on RPAPL 1304 notice content.

B. Mailing proof is not the end of the RPAPL 1304 inquiry

The plaintiff made a prima facie showing of RPAPL 1304 compliance as to mailing by submitting copies of the 90-day notices, certified mail receipts, and an officer affidavit describing the plaintiff’s standard business practices for sending and recordkeeping.

Nonetheless, the court held defendants raised a triable issue of fact because the record did not establish the content of the notice complied with RPAPL 1304 as it existed when the action was commenced (July 2018). The court’s reasoning is pointed: the notice was sent “more than a year and a half” before suit, and “nothing prevented the plaintiff from sending the defendants a new RPAPL 1304 notice, using the updated language, 90 days prior to commencing the action” (citing U.S. Bank N.A. v Chrismas-Beck, 219 AD3d at 538).

C. Issue preservation and “law of the case”

The court rejected the plaintiff’s contention that defendants’ RPAPL 1304 arguments were not properly raised, holding these points were “expressly raised” in opposition to the plaintiff’s renewal motion, including by incorporation of earlier opposition papers (citing Wells Fargo Bank, N.A. v Kohli, 241 AD3d at 1403).

It also clarified the role of “law of the case”: while that doctrine may constrain a trial court from revisiting its own prior rulings in the same action, “this Court is not bound” by the Supreme Court’s prior determination (again citing Wells Fargo Bank, N.A. v Kohli).

3.3 Impact

1) Content strictness pegged to commencement-date law. The decision reinforces a practical rule for foreclosure plaintiffs: when a foreclosure is commenced, the RPAPL 1304 notice must reflect the statutory language then in effect—not merely whatever version was mailed at some earlier time. A “stale” notice, even if properly mailed, can undermine summary judgment.

2) Operational compliance implications for lenders and servicers. Lenders who send RPAPL 1304 notices long before litigation (e.g., during loss mitigation efforts) should treat statutory amendments as requiring a refreshed notice cycle before filing suit, ensuring the notice text matches current law.

3) Renewal practice in foreclosure litigation. The decision illustrates the two-step nature of renewal: even where appellate developments justify reopening prior rulings, the movant still must win on the merits under the full set of applicable statutory requirements.

4. Complex Concepts Simplified

  • Motion for leave to renew (CPLR 2221): A request to revisit an earlier ruling because something material changed—commonly, a new or clarified appellate decision. It is not a do-over; it must be anchored in the change and show it would affect the result.
  • Prima facie case: The minimum showing needed to shift the burden to the opposing party. Here, the lender’s mailing proof could satisfy the initial burden, but it did not eliminate issues about notice content.
  • Triable issue of fact: A genuine factual dispute requiring a hearing or trial, which prevents summary judgment. Here, whether the RPAPL 1304 notice used the correct statutory language created such a dispute.
  • Strict compliance (RPAPL 1304): The lender must follow the statute’s notice requirements precisely. Substantive deviations in required text can be fatal to dispositive motions.
  • Law of the case: A discretionary doctrine that often prevents a trial court from re-litigating its own rulings during the same case, but it does not bind the Appellate Division reviewing the order.
  • Aggrieved party (CPLR 5511): Only a party harmed by an order may appeal it; otherwise, the appeal is dismissed as to that portion.

5. Conclusion

Bank of Am., N.A. v Thomas underscores a decisive foreclosure-litigation lesson: RPAPL 1304 compliance is not only about proving the notice was mailed properly, but also about proving the notice’s text matched the statute as of the action’s commencement. The Second Department accepted that intervening appellate authority justified renewal, yet still held summary judgment and an order of reference were properly denied because the lender did not eliminate factual questions regarding whether its pre-suit notice used the statutorily required language then in effect. In doing so, the decision signals to foreclosure plaintiffs that when the law changes, they should refresh their RPAPL 1304 notices before filing—rather than litigate over outdated forms.