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Case Study · Foreclosure Appeal · First Department

Lost at trial.
Reversed on
appeal.

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Petroff Amshen LLP is a New York consumer rights and foreclosure defense law firm, representing homeowners in state and federal courts since 2008. We are litigators. We do not send letters and hope.

The Result
Judgement
Reversed
Summary judgment for the bank reversed, unanimously, on appeal.
Motion
Denied
The bank's motion for summary judgment denied on that record.
Law enforced
RPAPL 1304
The record did not prove the 90-day notice was properly mailed by a third-party vendor.
Appellate Division, First Department·Case No. 2025-03853·James Tierney, Petroff Amshen LLP
Prior results do not guarantee a similar outcome. Every case turns on its own facts.
The Case

Lost at trial. We won on appeal.

A Bronx homeowner lost at the trial level when Supreme Court, Bronx County granted Wells Fargo Bank, N.A. summary judgment in a foreclosure. For many homeowners, that is where the case ends.

Petroff Amshen, with Senior Associate James Tierney, took the appeal. The firm argued that the lender's proof of the RPAPL 1304 90-day notice fell short. The notice had been mailed by a third-party vendor, Covius Services, LLC, and the affidavit offered did not establish that vendor's standard office mailing procedures. Mailing tracking numbers, the firm argued, are not by themselves proof that the notice was mailed.

The Appellate Division, First Department agreed and reversed, unanimously. On that record, proper mailing of the 90-day notice was not proven.
The Legal Record · RPAPL 1304

The notice has to be proven.

In New York, a residential foreclosure depends on a valid 90-day notice under RPAPL 1304. The lender carries the burden to prove that notice was mailed. When the proof falls short, the judgment can be reversed on appeal.

i
The 90-Day Notice
RPAPL 1304
New York requires a 90-day notice before a residential foreclosure can proceed. The statute sets what it must say and how it must be sent.
ii
The Burden of Proof
Proof of mailing
To rely on the notice, the lender must prove it was actually mailed, in the required way, to the borrower's last known address.
iii
The Vendor's Affidavit
Third-party mailer
When a third-party vendor mails the notice, an affidavit must establish that vendor's standard office mailing procedures.
iv
An Affidavit That Fell Short
Standard procedures
An affidavit that does not describe the vendor's mailing practices does not establish that the notice was mailed.
v
Tracking Numbers Aren't Enough
Mailing tracking
Mailing tracking numbers, on their own, are not proof that the notice was mailed.
vi
Reversed on Appeal
Appellate Division
A loss at the trial level is not the end. The Appellate Division reviewed the record and reversed, unanimously.
Proper mailing was not proven.Reversed, unanimously.
A trial court can get it wrong.
The appeal is where the record gets read again.
Find out.
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In Their Words

What clients have said.

★★★★★

I could not recommend a better group than Petroff Amshen. If you find yourself in a situation that requires the assistance of attorneys, this is the firm.

Eli Miller / Google
Prior results do not guarantee a similar outcome.
★★★★★

Petroff Amshen has helped us through a difficult process. They were very caring and explained everything as we went through the case.

Eddie Brown / Google
Prior results do not guarantee a similar outcome.
★★★★★

An effective firm with a minimum of fuss. When you need attorneys who actually do the work, you need these guys on your side.

Joseph Petruzzo / Google
Prior results do not guarantee a similar outcome.
Questions

What people ask before they call.

Q.
Can a foreclosure judgment be reversed on appeal in New York?
Yes. In this matter the Appellate Division, First Department unanimously reversed summary judgment that had been granted to the lender. Prior results do not guarantee a similar outcome.
Q.
What is the RPAPL 1304 90-day notice?
It is a notice New York requires before a residential foreclosure can proceed. The lender must send it in the form the statute requires and must be able to prove it was mailed.
Q.
Are mailing tracking numbers enough to prove a notice was mailed?
Not on their own. Courts have held that tracking numbers, without an affidavit establishing the mailing procedures used, do not prove proper mailing.
Q.
Does Petroff Amshen represent homeowners outside New York?
No. Petroff Amshen represents clients in New York only.
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Petroff Amshen does not take every case. Submit the application and a licensed New York attorney will review the matter directly, including whether an appeal is still available.

  • 01Submissions are confidential.
  • 02Reviewed by a licensed New York attorney, not a call center.
  • 03Most applications are reviewed within one business day.
  • 04Appeals run on strict deadlines. If time matters, the firm says so early.
  • 05Fee structure is discussed at the consultation.
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