Still Problems With The 30-Day Notice?

A recent case confirms the perhaps surprising notion that yes, lenders and servicers can still have trouble complying with the 30-dy notice prerequisite to foreclosure. [HSBC Bank USA, N.A. v. Schulman, 228 N.Y.S.3d 664, 228 N.Y.S.3d 664 (2025)]  This really should not happen, but remains a lesson not yet fully learned by mortgage holders, at the same time providing continuing ammunition for borrowers to stave off foreclosure.

This revelation is all the more dumbfounding in observing that the prevailing battleground for notice issues has for years been the 90-day notice mandated in home loan cases by RPAPL § 1304. [For an expansive analysis with citation of the 90-day notice subject, see 1 Bergman On New York Mortgage Foreclosures, §5.22, LexisNexis Matthew Bender (rev. 2026).]  All that jousting – literally hundreds and hundreds of cases, many of which defeated lenders – seemed to banish the 30-day requirement (although still a concurrent obligation) to resolved ancient history. The recent case, however, invokes the musical reference that “everything old is new again”.

First for the sake of immediate clarity, the 30-day notice obligation is strictly a creature of contract, in particular the Fannie Mae/Freddie Mac uniform mortgage instrument. That means its application is primarily to residential property, home loans. Commercial loans may have notice provisions but if they exist at all, they will vary, typically related to the category of default. [For a full review of the 30-day notice see 1 Bergman On New York Mortgage Foreclosures, § 4.04A, LexisNexis Matthew Bender (rev. 2026).]

Enlightenment in the recent case: Here the borrower defendant moved to dismiss the foreclosure on the ground that a required 30-day notice did not comply with the requirements of the relevant mortgage paragraph. In affirming the dismissal granted by the trial court, the Appellate Division first observed that a notice of default need only substantially comply with the terms of the mortgage. [HSBC Bank USA, N.A. v. Schulman, 228 N.Y.S.3d 664, 228 N.Y.S.3d 664 (2025), citing Axiom Bank v. Dutan, 190 A.D.3d 672, 674, 135 N.Y.S.3d 912; see U.S. Bank Trust, N.A. v. Miele, 186 A.D.3d 529, 531, 129 N.Y.S.3d 420; Hudson City Sav. Bank v. Friedman, 146 A.D.3d 757, 758, 43 N.Y.S.3d 912.]  Here, however the court ruled that the notice did not substantially comply with the controlling mortgage paragraph. That provision required that the lender provide the borrower with “at least 30 days from the date on which the notice is given” to correct the default [see Moet II v. McCarthy, 229 A.D.2d 876, 876-877, 646 N.Y.S.2d 64].  The letter at issue, however, stated that the specified amount had to be received “within” 30 days from the date of the letter. This, the court found, was less time to correct the default then was provided for in the mortgage.

 While this appears to be a small point, it is hard to argue with the court’s interpretation. The sloppy language of the lender’s correspondence did afford insufficient time to respond – at least such was below the standard required by the relevant mortgage paragraph. Mindful that the 30-day notice provisions in mortgages is clear as to what must to be stated in the written notice, it ought not to be difficult to comply with. Failure to adhere leads to unfortunate consequences for lenders.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2024), is a partner with Berkman, Henoch, Peterson & Peddy, P.C. in Garden City, New York. He is also a member of the The American College of Real Estate Lawyers, a fellow of The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.