What can ride along with the 90-day notice - and who gets to send it
A New York appeals court says a servicer got its foreclosure notice right - even with extra paperwork in the envelope.
The Appellate Division, Second Department, on October 28, 2026, affirmed summary judgment - a ruling without a full trial - in favor of Wilmington Savings Fund Society, FSB, in a mortgage foreclosure action out of Suffolk County. The court also upheld an order of reference appointing a referee to compute amounts owed, and denied the borrower’s cross-motion to dismiss.
The borrower challenged the lender’s pre-foreclosure notice on two fronts. Both failed.
First, the envelope. RPAPL 1304 requires lenders or servicers to send borrowers a notice at least 90 days before commencing foreclosure. The statute says the notice must travel “in a separate envelope from any other mailing or notice.”
Here, a second notice rode along in the same envelope - one outlining additional rights the borrower might have in connection with certain bankruptcy proceedings. The borrower argued that broke the rule.
The court disagreed. Because the bankruptcy information was relevant to avoiding foreclosure and was neither false nor misleading, including it did not violate the separate-envelope requirement.
Then came the authority question. Select Portfolio Services, Inc. (SPS), the loan servicer, had sent the 90-day notice and the contractual notice of default on behalf of the trust. The borrower argued SPS had no power to do so.
The court found otherwise. A limited power of attorney authorized SPS, as attorney-in-fact of the “Owner Trustee” - Wilmington Savings Fund Society - to act “in the Trust’s name, place and stead” and “for the Owner Trustee’s benefit.” The enumerated transactions covered “the preparation and filing of notices of default” and other actions “necessary under the terms of the Mortgage, Deed of Trust or state law to expeditiously complete said transactions.”
One more swing: the borrower argued SPS had to expressly name the owner trustee in each notice. The court rejected that too. No such requirement existed in the power of attorney.
The Suffolk County order was affirmed with costs.
For servicers handling RPAPL 1304 compliance, the practical signal is clear: supplemental material that helps a borrower avoid foreclosure can share the envelope with the 90-day notice, and a servicer acting under a limited power of attorney does not need to spell out the trust owner’s name in every notice it sends.
