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Banking Interpretations

Real Property Law 1304

October 6, 2010

Subject: Foreclosure Notice

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Your letter to me by facsimile dated October 4, 2010 asks for the Department's interpretation of certain language found in Section 1304(3) of the New York Real Property Actions and Proceedings Law. Specifically, you request an opinion as to whether the filing of a Petition in Bankruptcy Court by a mortgagor or the granting of a discharge from bankruptcy by the Court renders the 90 day notice requirement contained in Section 1304(1) inapplicable.

Section 1304(3) indicates the 90 day notice period "shall not apply, or shall cease to apply, if the borrower has filed an application for the adjustment of debts of the borrower or an order for relief from the payment of debts." It therefore appears that this notice period will not be applicable to the two situations you have presented. I note that Section 1304(3) makes the 90 day requirement inapplicable upon the "filing of an application for an order for relief from the payment of debts" (emphasis added). A Discharge Order need not be issued by the Court to render this requirement inapplicable.

Finally, I note that any opinion rendered by the Banking Department is not binding on a court of competent jurisdiction and that you may find further information on the recent statutory changes to foreclosure proceedings on the Department's website (www.banking.state.ny.us).

I trust that the above is responsive to your inquiry.

Steven Barras
First Assistant Counsel