A New York appellate court recently ruled in favor of defendants Nina and Aaron Fischman, halting a foreclosure action against them due to a defective notice. This decision, made on September 2, 2026, by the Appellate Division of the Supreme Court of the State of New York, affects homeowners facing similar foreclosure proceedings.
The case, Wilmington Savings Fund Society, FSB v. Fischman (Docket No. 2023-04916), centered on whether the mortgage lender, Wilmington Savings Fund Society, properly notified the Fischmans of the foreclosure action. The court's ruling highlights the importance of adhering to legal requirements when initiating foreclosure proceedings.
Background
The dispute began in August 2017 when Wilmington Savings Fund Society filed a lawsuit to foreclose on a mortgage for a property owned by the Fischmans in Woodmere, New York. The Fischmans responded to the lawsuit by raising several affirmative defenses, including a claim that the lender failed to comply with the New York Real Property Actions and Proceedings Law (RPAPL) § 1304. This law mandates specific notice requirements that lenders must follow before initiating foreclosure actions.
After the Supreme Court of Nassau County initially denied Wilmington's motion for summary judgment, the lender sought to renew its motion. On January 22, 2020, the court granted Wilmington's renewed motion, allowing the case to proceed. However, the Fischmans appealed the subsequent order and judgment of foreclosure and sale entered on March 17, 2023, which confirmed a referee's report and directed the sale of their property.
The Ruling
The appellate court ruled in favor of the Fischmans, reversing the lower court's decision. The judges on the panel included Hector D. Lasalle, Francesca E. Connolly, Janice A. Taylor, and Elena Goldberg Velazquez. The court found that the notice provided by Wilmington Savings Fund Society was defective, stating, "Proper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action."
The court emphasized that the notice issued by Wilmington on July 15, 2016, did not comply with the amended requirements of RPAPL 1304, which took effect on December 20, 2016. Since the foreclosure action began after this date, the court ruled that the lender failed to meet the necessary legal requirements to proceed with the foreclosure.
Impact
This ruling has significant implications for homeowners facing foreclosure. It reinforces the necessity for lenders to strictly comply with statutory notice requirements before initiating foreclosure actions. The court's decision serves as a reminder that even if a lender has a valid claim, failure to follow proper procedures can invalidate their case.
The ruling may also influence future foreclosure cases in New York. Homeowners may feel more empowered to challenge foreclosure actions based on technicalities related to notice requirements. This case could set a precedent for similar disputes, encouraging borrowers to scrutinize the notices they receive and assert their rights if proper procedures are not followed.
What's Next
Details were not available in the court filing regarding whether Wilmington Savings Fund Society plans to appeal this decision. There may be related cases pending that involve similar issues of notice compliance in foreclosure actions.