Page 19 - WCBA CLE 6-14-2022

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denied the plaintiff’s motion and granted Kessler’s cross motion.

The plaintiff acknowledged that the envelope that it sent to the homeowners, which
contained the requisite notice under RPAPL 1304, also included other information in
two notices pertaining to the rights of a debtor in bankruptcy and in military service.
Thus, the bank failed to establish, prima facie, that it strictly complied with the
requirements of RPAPL 1304, which requires notices “in a separate envelope from any
other mailing or notice”.

DISSENT: The additional language included in the RPAPL 1304 notice did not violate
any of the content provisions of that statute nor did it frustrate the statute’s overarching
purpose or intent. In the absence of an explicit prohibition against such additional
language in a valid RPAPL 1304 notice, the statute should not be extended beyond its
plain language which does not purport to restrict the content of a valid notice, or prohibit
the inclusion of any other language beyond that which is explicitly required

Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126 [Sept 29, 2021][Justice
Wooten, opinion; Justices Hinds-Radix, Barros concur; Justice Dillon concurs in
part, dissents in part]:

HOLDING ON APPEAL: The Supreme Court properly denied the plaintiff's motion for
summary judgment on the complaint to foreclose a mortgage and the plaintiff’s motion,
pursuant to CPLR 4404(b), after a non jury trial, to set aside the court’s determination
dismissing the complaint. The court entered a judgment, upon its determination that the
plaintiff failed to comply with the requirements of RPAPL 1304 as it mailed a single 90-
day notice jointly addressed to 2 or more borrowers, in favor of the defendants and
against the plaintiff dismissing the complaint insofar as asserted against them.

FACTS: The plaintiff commenced this foreclosure action against the defendants, a
married couple who defaulted on a 2005 loan in January of 2009. The loan servicer at
that time mailed separate 30 day notices of default to each of the defendants.
Thereafter, in February 2010, the plaintiff’s predecessor sent a letter jointly addressed
to the defendants notifying the defendants that servicing of the loan was transferred
from the first loan servicer to a second loan servicer and thereafter, the defendants
were notified that the servicing of the loan was again transferred to a third loan servicer.
In April 2013, the plaintiff purportedly was assigned the mortgage. After commencing
the action, the plaintiff thereafter moved for summary judgment on the complaint.
Although the 30-day notices of default were separately mailed to each of the borrowers,
the 90-day notice, which was sent via certified and first-class mail, was jointly
addressed to the borrowers and was not sufficient to satisfy the requirements of RPAPL
1304 as it provides that each borrower is entitled to receive notice. The language
“notice to the borrower”, is in the singular in the statute and is a prerequisite to

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