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Steven Amshen of Petroff Amshen LLP represented our client in the Supreme Court, Kings County.
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Quick AnswerIn a Decision and Order dated January 2, 2026, and entered January 15, 2026, Justice Menachem M. Mirocznik of the Supreme Court, Kings County, denied with prejudice a motion for summary judgment by U.S. Bank National Association, as trustee for a mortgage trust, in its foreclosure of a mortgage signed by our client on a Brooklyn property. The court found three separate holes in the bank's proof: the copy of its RPAPL 1306 state filing had the borrower's phone number blacked out, it offered no proof that the company that mailed the 90-day notice was authorized to send it, and its attempt to arrange a required in-person meeting came before any default. Its requests to strike our client's answer and for a referee were denied as well. Steven Amshen of Petroff Amshen LLP represented our client.
U.S. Bank National Association, as trustee for a mortgage trust, started this foreclosure on April 17, 2023. It was foreclosing a mortgage signed by our client on a Brooklyn property. Our client's answer raised the defenses that mattered, including New York's 90-day notice rule and the bank's duty to report that notice to the state.
The bank first moved for summary judgment in November 2024. After we filed opposition papers, it withdrew that motion. Then it tried again. This time it asked the court to grant foreclosure without a trial, strike our client's answer and appoint a referee to compute the debt. Its proof came from two Assistant Secretaries of Nationstar Mortgage LLC, the company it said was its servicer and attorney in fact.
In our experience, summary judgment is how banks usually win foreclosure cases. If this motion had been granted, the case would have moved straight toward a judgment of foreclosure. It wasn't.
Justice Menachem M. Mirocznik found three separate problems with the bank's case, and each one was enough to deny the motion.
The phone number. RPAPL 1306 requires a lender to file information about its 90-day notice with the New York Department of Financial Services, including the borrower's last known phone number. On the copy of the filing before the court, the space for the phone number was blacked out. The court held that this was "not a mere technical defect or irregularity" and that it undermined the statute's purpose of directing help to borrowers in need. As the court put it about New York's required foreclosure notices, "All three require strict compliance. All three require a phone number."
The 90-day notice. RPAPL 1304 requires the lender, assignee or loan servicer to mail the borrower a warning at least 90 days before suing. The bank's papers said the notices were sent by a different company, Rushmore Loan Management Services LLC. But the bank offered no proof that Rushmore was authorized to send them, so it couldn't show strict compliance.
The in-person meeting. A federal rule, 24 CFR 203.604, requires the lender to meet with the borrower, or make a reasonable effort to arrange a meeting, before three full monthly payments go unpaid. The bank pointed to an attempt on February 16, 2018. Its own complaint put the default at April 1, 2018. The court agreed with us that an attempt made before any default does nothing for the rule's purpose. In the court's words, "It defied logic that loss mitigation can occur when a defendant is not in default and no loss occurred." The court also found that the bank's proof of that letter was "conclusory," that the letter appeared to come from Wells Fargo with no proof Wells Fargo was the servicer at the time, and that the bank's own records showed any earlier default had been cured.
The Decision and Order is dated January 2, 2026, and was entered January 15, 2026.
From the court's Decision and Order dated January 2, 2026. On the meeting rule, the court held the motion "must be denied for this reason as well."
The record, in order: what the law requires, what U.S. Bank offered, and what the court held on each argument.
When the borrower's answer raises New York's notice rules, the bank has to prove, as part of its own case, that it followed them strictly. Here it could not, so the motion "must be denied without regard to the sufficiency of the opposition papers."
RPAPL 1306 requires the lender's state filing to include the borrower's last known phone number. The court explained why it matters: the information is used to "direct appropriate services to borrowers in need," and leaving it out undermines that purpose. New York holds its other notice rules to the same standard. In the court's words, "All three require strict compliance. All three require a phone number."
RPAPL 1304 names who must give the 90-day notice: the lender, assignee or loan servicer. When another company sends it, the bank has to prove that company was authorized. Here it offered no such proof, so it could not show strict compliance.
The federal meeting rule is about loss mitigation: working with the borrower once payments go unpaid. An attempt made before the borrower is in default, the court held, does not accomplish that purpose. And the bank still has to prove the letter was actually sent.
It's easy to think of these notice rules as paperwork. New York courts treat them as conditions the bank has to meet before it can foreclose at all. Here the bank couldn't show who was authorized to mail the warning letter. The copy of its state filing had the phone number blacked out, and its attempt at a meeting came before there was anything to talk about.
Those defenses only help if someone raises them and holds the bank to its proof. That's what we do. If you've been served with foreclosure papers, call us before you answer, or as soon as you can after.
Steven Amshen of Petroff Amshen LLP represented our client in the Supreme Court, Kings County.
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