U.S. Bank Nat'l Ass'n v. Sackaris
| Decision Date | 01 March 2022 |
| Docket Number | Index No. 607215/2015 |
| Citation | 74 Misc.3d 923,164 N.Y.S.3d 794 |
| Parties | U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR LEHMAN MORTGAGE TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-8, Plaintiff, v. Michael SACKARIS, All County Block & Supply Corp., American Express Travel Related Services, Inc., Phyllis Burman, Fremont Investment & Loan, James Kalis, Kings Park Ready Mix Corp., New York State Department of Taxation and Finance, People of the State of New York, Premium Technical Services Corp., Wells Fargo Bank, N.A., Successor by Merger to Wells Fargo Bank Minnesota, National Association, as Trustee for Renaissance HEL Trust 2002-3 John Doe (being fictitious, the names unknown to Plaintiff intended to be tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heirs at law, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors), Defendants. |
| Court | New York Supreme Court |
Gross Polowy, LLC, Attorneys for Plaintiff, 1775 Wehrle Drive, Suite 100, Williamsville, NY 14221
YOUNG LAW GROUP, PLLC, Attorneys for Defendant, 80 Orville Drive, Suite 100, Bohemia, New York 11716
ORDERED that the plaintiff's motion for summary judgment are denied, and it is further
ORDERED that the cross motion of defendant for summary judgment is granted and the action is dismissed.
The basis facts of the action are articulated in the prior decisions and orders of Judge Hudson (NYSCEF Doc Nos. 53, 84, and 127). Presently, the plaintiff has moved for summary judgment and the defendant has cross motion for summary judgment.
The court first addresses defendants’ cross-motion as it finds that motion to be dispositive of the case. The court notes that when a defendant has raised compliance with RPAPL § 1304 in the answer, plaintiff is required to establish its compliance with the requirements of the statute (see Deutsche Bank Natl. Trust Co. v. Starr , 173 A.D.3d 836, 104 N.Y.S.3d 643 [2d Dept. 2019] ; Bank of New York Mellon v. Zavolunov , 157 A.D.3d 754, 69 N.Y.S.3d 356 [2d Dept. 2018] ). In support of its motion, plaintiff has submitted copies of the RPAPL § 1304 notices that it allegedly mailed in compliance with the statute (NYSCEF Doc No. 27).
RPAPL § 1304 (2) mandates that the required notices be mailed "in a separate envelope from any other mailing or notice." Plaintiff's submission proves that the notices contain additional language not directed by the statute in violation of RPAPL § 1304 (2). The Second Department has recently held that "inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2)" ( Bank of America, N.A. v. Kessler , 202 A.D.3d 10, 160 N.Y.S.3d 277 [2d Dept. 2021]see Wells Fargo Bank, N.A. v. DeFeo , 200 A.D.3d 1105, 161 N.Y.S.3d 218 [2d Dept., 2021] ; Citimortgage, Inc. v. Dente , 200 A.D.3d 1025, 155 N.Y.S.3d 813 [2d Dept. 2021] ). This "strict approach" provides clear guidelines that any "additional material" violates the requirements of RPAPL § 1304. Here, the additional material provided in the notice which is not within the section's language1 ( Ocwen Loan Servicing, LLC v. Sirianni , 202 A.D.3d 702, 163 N.Y.S.3d 110 [2d Dept. 2022] ). Strict compliance with RPAPL § 1304 is a condition precedent for the commencement of a foreclosure action ( H & R Block Bank, FSB v. Liles , 186 A.D.3d 813, 130 N.Y.S.3d 521 [2d Dept. 2020] ).
The plaintiff argues that the language was required by the Fair Debt Collection Practices Act (FDCPA). Specifically, the FDCPA states that the "failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action." 15 USC 1692e(11). In Townsend v. Quantum3 Group, LLC , 535 B.R. 415 (M.D. Fla. 2015), the court held that a proof of claims filed by a debtor were "formal pleadings" so as not to require the disclosure notice. The notice under RPAPL is a condition precedent to commencing a foreclosure action required by the statute and compliance with the statute must be stated in the complaint2 and documents attached to the complaint establishing compliance. Furthermore proof of compliance is mandated to be filed with the superintendent of financial services pursuant to RPAPL § 1306. This is analogous to Townsend so the Court finds that the notice sent as required by RPAPL 1304 is a formal pleading exempted from the requirements of providing the statement under the FDCPA.3 This is harmony with many courts that have held that a broad application of the formal pleading exception should be applied (see e.g....
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Bank of N.Y. Mellon v. Luria
...Court. Since the Second Department has yet to grapple with FDCPA preemption issues, one lower court — in U.S. Bank N.A. as Trustee v. Sackaris, 74 Misc. 3d 923, 164 N.Y.S.3d 794 (Sup. Ct. Suffolk Co. 2022) — properly declined to apply Kessler without first conducting an analysis to determin......