Page 7 - WCBA CLE 6-14-2022

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MORTGAGE FORECLOSURE

Bank of America, NA v Kessler, 202 AD3d 10

Opinion by Hon. Colleen D. Duffy; Hon. Presiding Justice LaSalle and Hon.
William Mastro concur; Hon. Robert Miller dissents.

QUESTION PRESENTED: How exacting is the requirement of strict compliance
with respect to the “separate envelope” mandate of RPAPL 1304

RPAPL 1304 at time of action provided as follows:

1. Notwithstanding any other provision of law, w/ regard to a home loan, at
least 90 days before lender commences legal action against borrower such
lender shall give notice to the borrower in at leasst 14 point type which
shall include the following . . .

2. The notices req’d by this seciton shall be sent by such lender by
registered or certified mail and also by first-class mail to the borrower and
to the residence that is the subject of the mtge. The notices req’d by this
section shall be sent by the lender in a separate envelope from any other
mailing or notice. The notices req’d by this section shall contain . . .

HOLDING: Since the P acknowledged that envelope sent to D included add’l
information pertaining to the rights of a debtor in bankruptcy and in
military service, P failed to establish, prima facie, that it strictly
complied w/ the requirements of RPAPL 1304 and D establ prima
facie his entitlement to Judgment as a matter of law on this issue
and P failed to raise a triable issue of fact in opposition

The Supreme Court (Hon. Alan D. Scheinkman) properly denied
those branches of the P’s motion for summary judgment on the
complaint, to strike the D’s affirmative defenses and an order of
reference and granted the D’s motion for summary judgment
dismissing the complaint

Legislative History of RPAPL 1304 supports finding that strict interpretation of the
“separate envelope” requirement is consistent with Legislature’s intent

- separate envelope req’mt of RPAPL 1304 is exclusive to this section and not
found in other notice provisions applicable to mtge foreclosure proceedings

- although RPAPL 1304 has been amended several times since its adoption in
2008, the ‘separate envelope” req’mt has consistently remained