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Case Study · Foreclosure Defense · Kings County

In 2017 the court excusedthe bank's late filing.In 2026 it did not.

5 business daysPast the deadlineThe law allows three business days. The bank lost.

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The Result
The bank's report to the state
5 business days
Due February 22, 2010. Filed March 1, 2010.
Deutsche Bank's 2012 foreclosure
Dismissed
The complaint, against both borrowers.
The 2017 ruling on the delay
Undone
It had found the lateness too small to matter.
Supreme Court, Kings County · 2026
Prior results do not guarantee a similar outcome. Every case turns on its own facts.
The Case

The bank reported its notice late.
For years, that was forgiven.

Quick AnswerIn a decision filed July 9, 2026, Justice Derefim B. Neckles of the Supreme Court, Kings County, dismissed a 2012 Brooklyn foreclosure brought by Deutsche Bank National Trust Company, as trustee. New York's RPAPL 1306 gives a lender three business days to report its 90-day pre-foreclosure notice to the state. The bank mailed its notices on February 17, 2010, and reported them on March 1, 2010, five business days late. A 2017 ruling had excused the delay as "de minimis." After the Appellate Division, Second Department, required strict compliance in two June 2025 decisions, Petroff Amshen asked the court to renew that ruling. The court granted renewal, held that the delay "constitutes a fatal procedural defect," granted summary judgment to the borrowers and dismissed the complaint against them.

The deadline the bank missed

New York gives borrowers two protections before a foreclosure can start. RPAPL 1304 requires the lender to mail a 90-day warning notice to the borrower. RPAPL 1306 then requires the lender to report that notice to the state banking regulator within three business days of mailing it.

Deutsche Bank National Trust Company, as trustee, mailed its 90-day notices to the borrowers on February 17, 2010. Its report was due by February 22, 2010. It filed on March 1, 2010, five business days late. The bank sued to foreclose on the Brooklyn property in June 2012.

How the case got here

In an April 20, 2017 decision, the court acknowledged the filing was late. It still excused it, calling the delay "de minimis and not prejudicial" because it was "a few days late and significantly before the action was commenced." For years after that, the late filing was treated as settled.

Then the law moved. On June 25, 2025, the Appellate Division, Second Department, whose rulings bind Brooklyn's trial courts, decided two cases called Bank of N.Y. Mellon v. Peralta and Deutsche Bank Natl. Trust Co. v. Goetz. In Peralta the filing was eight business days late. In Goetz it was seventeen days late. Both foreclosures were dismissed. The court in Peralta said "strict compliance" with the three business day deadline "is required."

How we won

We moved to renew the 2017 ruling on behalf of our client, arguing that Peralta and Goetz changed the law. A five business day delay, we argued, was legally indistinguishable from the delays that sank those two cases.

We also showed that the change was real. A Kings County judge had already begun citing Peralta as binding authority and denying summary judgment where a lender's state filing fell short. As we put it in our reply, if those decisions were only a restatement of old law, "the courts in this county would not be citing them as the source of the applicable standard."

The bank argued the 2017 ruling was settled and could not be reopened. We answered that the law of the case cannot block a renewal motion built on new appellate authority, because otherwise the renewal statute would mean nothing. The bank also said strict compliance had always been the rule. Justice Derefim B. Neckles disagreed. Before Peralta and Goetz, the court explained, "there had previously been no binding authority directing trial courts on how to address a failure to satisfy RPAPL § 1306." Those decisions supplied it, and the court held they "represent a sufficient change in the law to warrant granting leave to renew."

Applying the strict standard, the court found:

The delay constitutes a fatal procedural defect in the commencement of this foreclosure action.Supreme Court, Kings County, Decision and Order, 2026

What the court ordered

  • Our motion to renew the 2017 ruling granted.
  • The part of the 2017 order finding dismissal unwarranted vacated, along with the part of a 2019 order that had thrown out the borrowers' late filing defense.
  • Summary judgment granted to the borrowers, and the bank's complaint dismissed against them.
Three business days is the rule. Now it is enforced as written.
Timeline

From a 2010 deadline
to a 2026 dismissal.

Notices mailed
February 17, 2010
State report due
February 22, 2010
State report filed
March 1, 2010

In 2017 the court called the delay "de minimis and not prejudicial." In 2026 it called it "a fatal procedural defect."

  1. 2010
    The late state filing.
  2. Jun 2012
    Deutsche Bank sues.
  3. Apr 2017
    A first ruling on the late filing.
  4. Jun 2025
    The Appellate Division requires strict compliance.
  5. Jul 2026
    Renewal granted. Complaint dismissed.
The Legal Record · State Filing Deadline

February 22, 2010.
That was the defense.

The record, in order: the deadline, the bank's filing, and what the court held on each argument.

The deadline · RPAPL 1306
3 business days
From mailing the 90-day notice to reporting it to the state.
The bank's filing · March 1, 2010
5 business days
Late. No exception under strict compliance.
The argumentThe bank saidThe Court held
01
An old ruling can be renewed.Law of the case
The bank saidThe 2017 ruling was the law of the case and could not be revisited.
The Court heldRejected
Peralta and Goetz "represent a sufficient change in the law to warrant granting leave to renew."
02
The law did change.Change in decisional law
The bank saidStrict compliance with RPAPL 1306 was already the established law.
The Court heldRejected
Before those decisions, "there had previously been no binding authority directing trial courts on how to address a failure to satisfy RPAPL § 1306."
03
Five business days late is too late.Strict compliance · RPAPL 1306
The bank saidIts 2010 filing with the state was enough.
The Court heldDismissed
Mailed February 17, 2010, due February 22, filed March 1. The delay "constitutes a fatal procedural defect," and the complaint is dismissed against the borrowers.
Excused in 2017.Fatal in 2026.
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Legal Analysis · Plain English

What the Court decided,
and why it matters.

1. Two steps before any foreclosure

RPAPL 1304 requires the lender to mail a 90-day warning notice. RPAPL 1306 then requires it to report that notice to the state within three business days. Both are conditions the lender has to meet before it can sue.

2. Strict means strict

In Peralta, the Appellate Division, Second Department, held that "strict compliance" with the three business day deadline "is required." Under that standard, the court held, failing to file on time "constitutes a fatal defect in a foreclosure action."

3. A change in the law can reopen an old ruling

A motion to renew lets a court revisit an earlier order when the law has changed. The 2017 ruling was not the end of the story.

4. Old files may hold a defense

We see New York foreclosures that have been in court for a decade or more. Somewhere in those files there may be a ruling that forgave a lender's missed deadline as harmless. After Peralta and Goetz, that kind of ruling may be worth revisiting.

Questions

Questions people search
about the 90-day notice filing.

What is the RPAPL 1306 deadline?
A New York lender has to report its 90-day pre-foreclosure notice to the state within three business days of mailing it. Here the notices went out on February 17, 2010, the report was due by February 22, 2010, and Deutsche Bank filed it on March 1, 2010.
Is a few days late really enough to end a foreclosure?
It was here. Applying the strict standard, the court held that the five business day delay "constitutes a fatal procedural defect in the commencement of this foreclosure action." Every case turns on its own facts. Prior results do not guarantee a similar outcome.
Can an old ruling be reopened when the law changes?
It can. A motion to renew asks a court to revisit a prior order because the law has changed. Here the court held that two June 2025 appellate decisions "represent a sufficient change in the law to warrant granting leave to renew."
What did Peralta and Goetz change?
Before them, the court explained, "there had previously been no binding authority directing trial courts on how to address a failure to satisfy RPAPL § 1306." In Peralta the filing was eight business days late, in Goetz seventeen days late, and both foreclosures were dismissed.
What should I bring for a case review?
The dates. When were the 90-day notices mailed, and when did the bank report them to the state? If the gap was more than three business days, we want to see your file.
Does Petroff Amshen represent clients outside New York?
No. Petroff Amshen represents clients in New York only.
Glossary: the terms in plain English
90-day notice
The warning letter a New York lender must mail a borrower before it can sue to foreclose (RPAPL 1304).
State filing
The lender's report of that notice to the state, due within three business days (RPAPL 1306).
Condition precedent
A step the lender must complete before it is allowed to bring the case at all.
Strict compliance
Doing exactly what the statute requires, on time. Close is not enough.
De minimis
Too small to matter. The 2017 ruling used it for the late filing.
Motion to renew
A request to revisit an earlier ruling because the law has changed since.
Binding authority
An appellate ruling the trial courts below it must follow.
Summary judgment
A ruling without a trial, when the papers show one side is entitled to win.
Vacated
Set aside by the court.
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