Opinion
Index No. 031020/2016
09-28-2022
Deutsche Bank National Trust Company as Trustee for WAMU Mortgage Pass Through Certificates Series 2005-AR6, Plaintiff, v. Aaron Aber, United States of America F Acting Through the IRS and "Jane Doe" (occupant-name refused), Defendants.
Laurence P. Chirch, Esq. (Parker Ibrahim & Berg LLP) for Plaintiff Anthony R. Filosa, Esq. (Rosenberg Fortuna & Laitman, LLP) for Defendant
Unpublished Opinion
Laurence P. Chirch, Esq. (Parker Ibrahim & Berg LLP) for Plaintiff
Anthony R. Filosa, Esq. (Rosenberg Fortuna & Laitman, LLP) for Defendant
HON. ROLF M. THORSEN, A.J.S.C.
The papers filed electronically as NYSCEF Documents 195-267 were read on (1) this Notice of Motion by plaintiff for an order pursuant to RPAPL 1351 granting judgment of foreclosure and sale, and for related relief (Sequence #5); and (2) this Notice of Cross Motion by defendant Aaron Aber for an Order pursuant to CPLR 2221(e) granting leave to renew the Decision and Order of this Court (Thorsen, J.) dated June 12, 2018, which denied defendant's cross motion for summary judgment dismissing the complaint and granted plaintiff's motion for summary judgment - and upon renewal sustaining defendant's affirmative defense under RPAPL 1304 pursuant to Bank of Am. v Kessler (202 A.D.3d 10 [2d Dept 2021]), denying plaintiff summary judgment, granting defendant's cross motion and dismissing this action (Sequence #7).
Upon the foregoing papers, and all prior papers and proceedings in this action, the motions are consolidated for purposes of decision and are determined as follows:
The Court extends its appreciation to Court Attorney-Referee David Evan Markus for his assistance in preparing this Decision and Order.
Background and Party Contentions
In this residential foreclosure action concerning the real property located at 5 Fanley Avenue, Unit A in Spring Valley, New York, this Court (Thorsen, J.), by Decision and Order dated June 12, 2018, denied defendant's cross motion for summary judgment dismissing the complaint on his RPAPL 1304 defense, and granted plaintiff's motion for summary judgment ("Prior Decision"). Plaintiff now moves for judgment of foreclosure and sale, and defendant cross moves pursuant to CPLR 2221(e) to renew the Prior Decision under Bank of Am. v Kessler (202 A.D.3d 10 [2d Dept 2021]).
Defendant argues that plaintiff's RPAPL 1304 pre-commencement notice was facially defective under the RPAPL 1304(2) separate-envelope requirement, as Kessler and its progeny construed it, because the notice contained the following additional language that RPAPL 1304(1) did not specify:
This communication from a debt collector is an attempt to collect a debt and any information contained will be used for that purpose.
Foreclosure Prevention Counseling
If you are having trouble paying your mortgage or are at risk of foreclosure, contact a not-for-profit housing counselor in your area. Not-for-profit housing counselors provide free, professional advice. They can help you assess your options, negotiate with your lender and find free legal services and other resources in your area. The following not-for-profit housing counseling organizations have received some type of public funding to provide foreclosure prevention services. It's always a good idea to call in advance to see if an appointment is necessary and what, if any, documents you should bring with you.
Be wary of companies and individuals who promise to help save your home from foreclosure in exchange for the payment of fees upfront. New York law prohibits the collection of such fees except in limited circumstances.
If you live in New York City, you can contact the Center for New York City Neighborhoods (CNYCN) at 646-786-0888. CNYCN partners with more than 50 agencies and coordinates foreclosure prevention and intervention services in all five boroughs. It can help you find the right services for your needs.
Please note that the State cannot guarantee the advice of any individual housing counseling agency. However, many of these agencies have adopted National Industry Standards for Homeownership Counseling to ensure that homeowners receive quality and professional counseling.
Also note that the list may not include all publicly funded agencies in New York that are providing foreclosure counseling services. The New York Division of Homes & Community Renewal is continually working to add new agencies to the list.
For more information on avoiding foreclosure visit the New York Department of Financial Services website at www.dfs.ny.gov.
The U.S. Department of Housing and Urban Development (HUD) also sponsors housing counseling agencies that can provide advice on preventing foreclosure. HUD approved home ownership counseling may be available to you. You should call (800) 569- 4287 or TDD (800) 877-8339, or go to HUD's website at www.hud.gov to find the HUD-approved housing counseling agency nearest you.
(NYSCEF 226, at 79). On this basis, defendant asserts that this action must be dismissed for plaintiff's inability to prove strict compliance with RPAPL 1304.
Plaintiff does not dispute the RPAPL 1304 notice's content. Rather, plaintiff argues that this Court cannot consider the Kessler issue now because the Prior Decision is the law of the case, Kessler did not evince a CPLR 2221(e)(2) change in law, and Kessler violates federal law.
Leave to Renew
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221[e][2]), and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Countrywide Home Loans, Inc. v Ward, 167 A.D.3d 842, 844 [2d Dept 2018]; Professional Offshore Opportunity Fund, Ltd. v Braider, 121 A.D.3d 766, 769 [2d Dept 2018] [collecting cases]).
While this Court is unaware of appellate authority on whether Kessler stated a sufficient change in law to merit renewal under CPLR 2221(e)(2), it is well settled that "a clarification of the decisional law is a sufficient change in the law to support renewal" (Dinallo v DAL Elec., 60 A.D.3d 620 [2d Dept 2009], cf. Opalinski v City of New York, 164 A.D.3d 1354, 1355 [2d Dept 2018], lv dismissed 33 N.Y.3d 1008 [2019]; see also Siegel & Connors, NY Prac, § 449 [6th ed. 2018]). It also is well settled that a residential foreclosure defendant can raise an RPAPL 1304 defense "at any time during the action" (Wells Fargo Bank, N.A. v DeFeo, 200 A.D.3d 1005, 1006 [2d Dept 2021]; Dente, 200 A.D.3d at 1027, quoting U.S. Bank, N.A. v Krakoff, 199 A.D.3d 859, 862 [2d Dept 2021]; HSBC Bank USA, N.A. v Cardona, 193 A.D.3d 696, 698 [2d Dept 2021]; Wells Fargo Bank v Morales, 178 A.D.3d 881, 882 [2d Dept 2019]). On these authorities, this Court concurs with Deutsche Bank Natl. Trust Co. v Falborn (Index No. 31668/2018 [Sup Ct Rockland Co, Jun 13, 2022]) and U.S. Bank, N.A. v DeJesus (75 Misc.3d 1211 [Sup Ct Putnam Co, Jun 1, 2022]) that Kessler effectuated, at minimum, a sufficient clarification of law under CPLR 2221(e)(2) to authorize renewal on that basis This Court also observes that because a residential foreclosure plaintiff can obtain leave to renew an adverse denial of summary judgment on RPAPL 1304 grounds, and then lose on Kessler grounds (see HSBC Bank USA, N.A. v DiBenedetti, 205 A.D.3d 687 [2d Dept, May 4, 2022]), a residential foreclosure defendant must be able to seek leave to renew an adverse award of summary judgment on that same decisional basis.
This Court is aware that three other trial courts denied Kessler- based renewal, finding that Kessler did not evince a change in law under CPLR 2221(e)(2) (see Wilmington Sav. Fund Soc., FSB v Sotomayor, ____ Misc.3d ____, 2022 NY Slip Op 31298 [Sup Ct Westchester Co, May 12, 2022]; Bank of NY Mellon v Luria, 75 Misc.3d 1205 [Sup Ct Putnam Co, May 11, 2022] [" Luria I "]; Bank of NY Mellon v Abraham, 75 Misc.3d 876 [Sup Ct Westchester Co, May 2, 2022]). This Court respectfully disagrees for the reasons stated above, and based on three further prudential considerations.
The first is that courts liberally construe and apply remedial statutes like RPAPL 1304 to effectuate their remedial intent (see Mackinen v City of New York, 30 N.Y.3d 81, 88 [2017], quoting Matter of Scanlan v Buffalo Pub. School Sys., 90 N.Y.2d 662, 667 [1997]; Post v 120 E. End Ave. Corp., 62 N.Y.2d 19, 24 [1984] [remedial statute "should be liberally construed to spread its beneficial effects as widely as possible"]; People v Brown, 25 N.Y.2d 247, 251 [2015]; McKinney's Cons Laws of NY, Book 1, Statutes, § 321 ["Generally, remedial statutes are liberally construed to carry out the reforms intended and to promote justice"]). While renewal sounds under CPLR 2221(e)(2) for which the Legislature manifested no clear remedial intent, the RPAPL 1304 remedial purpose to assist homeowners avoid foreclosure litigation (see Emigrant Bank v Cohen, 205 A.D.3d 103, 109 [2d Dept, Apr 10, 2022]; Bank of NY Mellon v Forman, 176 A.D.3d 663, 666 [2d Dept 2019]) is the core interest that this renewal motion seeks to vindicate. Thus, as applied here, the intended liberality of RPAPL 1304 must extend to the procedural vehicle by which defendants seek to assert that defense.
The second factor sounds in equity. "It is well settled that an action to foreclose a mortgage is equitable in nature and triggers the equitable powers of this Court" (PHH Mtge. Corp. v Hepburn, 128 A.D.3d 659, 661 [2d Dept 2015]; Norstar Bank v Morabito, 201 A.D.2d 545, 546 [2d Dept 1994], following Notey v Darien Constr. Corp., 41 N.Y.2d 1055 [1977]). "Once equity is invoked, this Court's power is as broad as equity and justice require" (Hepburn, 128 A.D.3d at 661; Morabito, 201 A.D.2d at 546; Ripley v Int'l Rys. of Central Am., 8 A.D.2d 310, 328 [1st Dept 1959], affd 8 N.Y.2d 430 [1960]). Plaintiffs that invoke these equity powers by bringing a foreclosure action can expect courts to apply those powers in a manner achieving substantial justice. Absent any showing that a residential foreclosure defendant prejudicially delays a renewal motion or comes to it with unclean hands, substantial justice weighs in favor of considering a well-pleaded RPAPL 1304 defense on its merits.
The third prudential factor relates to the appellate context in which Kessler arose. Just last year, the Court of Appeals announced its "clear rule" declining to consider potential motives of residential foreclosure plaintiffs that elect to revoke prior accelerations of mortgage debt, so as to vindicate policy objectives of clarity, consistency and predictability in the law of residential foreclosures (see Freedom Mtge. Corp. v Engel (37 N.Y.3d 1, 32 [2021]). Months later, in a case of "first impression," the Second Department held that each borrower entitled to receive an RPAPL 1304 pre-commencement notice also has a right to receive such notice in a "separate envelope" from communications to any other borrower (Wells Fargo Bank, N.A. v Yapkowitz, 199 A.D.3d 126, 128 [2d Dept 2021]). Kessler then relied expressly on both Yapkowitz and Engel, and particularly the Engel policy objectives, to extend the "separate envelope" mandate-even for a sole borrower-to bar any language beyond the exact language of RPAPL 1304(1) itself (see Kessler, 202 A.D.3d at 18). Kessler even narrated the necessity of its own "bright-line rule" lest courts entangle themselves in "exactly the type of judicial scrutiny" concerning motive and context that Engel disallowed (Engel, 202 A.D.3d at 16-17). Thus, Kessler does not stand on its own, but rather on a fast-breaking series of appellate decisions that shifted the foundation of this area of law. For this reason, and because Kessler relied on a case of first impression, plaintiff is wrong that Kessler constituted a mere re-articulation of existing law.
Plaintiff retorts that the current procedural posture bars a Kessler -based motion for leave to renew, because the Prior Decision considered and rejected defendant's RPAPL 1304 defense pre- Kessler. For this proposition, plaintiff offers a recent decision in JPMorgan Chase Bank, N.A. v Nehorayoff (Index No. 66892/2016 [Sup Ct Westchester Co, May 4, 2022]), which held exactly that. This Court respectfully disagrees with Nehorayoff because, in this Court's view, that case mistakenly construed U.S. Bank, N.A. v Ramanabubu (202 A.D.3d 1139 [2d Dept, Feb 23, 2022]). Ramanabubu was an appeal from a judgment of foreclosure and sale on which the defendants had brought a new cross motion to dismiss on RPAPL 1304 grounds. Ramanabubu held that while a residential foreclosure defendant can raise a RPAPL 1304 defense at any time before entry of judgment of foreclosure and sale, a court that already considered and rejected that defense cannot entertain a new dismissal motion on the same grounds because original determination remained the law of the case (see Ramanabubu, 202 A.D.3d 1139, at *3, citing Wells Fargo Bank, N.A. v Morales, 178 A.D.3d 881, 812 [2d Dept 2019]). Critically, neither Ramanabubu nor Morales addressed the current posture of a CPLR 2221(e) motion for leave to renew a trial court's prior determination of an RPAPL 1304 defense due to a change in law, which is the key procedural device to revisit what otherwise would be the law of the case. On plaintiff's argument, a defendant never could bring a CPLR 2221(e) motion for leave to renew based on a change in the law applicable to RPAPL 1304 - a result that would derogate both the plain legislative intent of CPLR 2221(e)(2) inviting precisely that kind of motion and vitiate the Legislature's remedial intent in enacting RPAPL 1304 itself. Further, Ramanabubu and Morales did not consider the effect of Kessler on a prior RPAPL 1304 defense: the underlying dismissal motion in Ramanabubu preceded Kessler, and Morales itself preceded Kessler by two years. Thus, Ramanabubu does not bar a renewal motion (and especially not a renewal motion on Kessler grounds), and this Court respectfully parts ways with Nehorayoff to the extent that it asserts otherwise.
Accordingly, and in this Court's discretion, defendant's motion for leave to renew the Prior Decision is granted, and the Court will consider the RPAPL 1304 defense on its merits.
RPAPL 1304, Federal Preemption and Prudential Considerations
Turning to the merits of the RPAPL 1304 defense itself, the Court need not belabor the issues. Strict compliance with the requirements of RPAPL 1304 is a condition precedent to the commencement of a foreclosure action (Kessler, 202 A.D.3d at 14; see CV XVII, LLC v Trippiedi, 187 A.D.3d 847, 850 [2d Dept 2020]; US Bank, N.A. v Haliotis, 185 A.D.3d 756, 758 [2d Dept 2020]). Plaintiff's RPAPL 1304 notice included extensive language that RPAPL 1304(1) does not specify for inclusion in a pre-commencement notice. Plaintiff does not dispute that the envelope conveying plaintiff's RPAPL 1304 notice transmitted this additional language. RPAPL 1304(2) is clear that the pre-commencement notice "required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice." Additional language not "required by this section" violates the separate-envelope requirement as Kessler and its progeny have construed it over a dozen times in recent months (see e.g. JPMorgan Chase Bank, N.A. v Dedvukaj, ____ A.D.3d ____, 2022 NY Slip Op 04541 [2d Dept, Jul 13, 2022]; U.S. Bank, N.A. v Lanzetta, - A.D.3d -, 2022 NY Slip Op 04322 [2d Dept, Jul 6, 2022]; Wells Fargo Bank, N.A. v Bedell, 205 A.D.3d 1064 [2d Dept, May 25, 2022]; HSBC Bank USA, N.A. v Hibbert, 205 A.D.3d 783, 784 [2d Dept, May 11, 2022]; US Bank, N.A. v Drakakis, 205 A.D.3d 756, 757 [2d Dept, May 4, 2022]; Bank of NY Mellon v Govan, 204 A.D.3d 878 [2d Dept, Apr. 20, 2022]; HSBC Bank USA, N.A. v Jahaly, 204 A.D.3d 648 [2d Dept, Apr. 6, 2022]; US Bank, N.A. v Hinds, 203 A.D.3d 1210 [2d Dept, Mar. 30, 2022]; Deutsche Bank Natl. Trust Co. v Bancic, 203 A.D.3d 1130 [2d Dept, Mar. 30, 2022]; Deutsche Bank Natl. Trust Co. v Salva, 203 A.D.3d 700 [2d Dept, Mar. 2, 2022]; US Bank, N.A. v Kaplan, 202 A.D.3d 1144 [2d Dept, Feb. 23, 2022]; Sirianni, 202 A.D.3d at 702; DeFeo, 200 A.D.3d at 107; Dente, 200 A.D.3d at 1025). As such, defendant carries his prima facie burden to demonstrate entitlement to judgment sustaining his RPAPL 1304 affirmative defense and, on that basis, obtain summary judgment dismissing this action.
In opposition, plaintiff argues that an additional notice conveying federally required materials inside an RPAPL 1304 envelope cannot violate Kessler and its progeny under two recent cases sounding in federal preemption (see CIT Bank, N.A. v Neris, ___ F.Supp.3d ___, 2022 WL 1799497 [SD NY, Jun 2, 2022]); Bank of NY Mellon v Luria, ___ Misc.3d ___, 2022 NY Slip Op 22218 [Sup Ct Putnam Co, Jul 18, 2022] [" Luria "]). The thrust of Neris and Luria was that a residential foreclosure plaintiff is a debt collector under the Federal Debt Collection Practices Act ("FDCPA") (see 15 USC § 1692a[6][A], [F]; see also Cohen v Rosicki, Rosicki & Assocs., 897 F.3d 75 [2d Cir 2018], cf. Obduskey v McCarthey & Holthus LLP, __ U.S. ___, 139 S.Ct. 1029 [2019]), and therefore must issue a so-called FDCPA "mini- Miranda" warning on its "initial communication" to the debtor to collect on that debt (see 15 USC § 1692e[11]; cf. 15 USC § 1692a[11] [excluding formal pleadings from FDCPA "mini- Miranda" requirement]). The argument continues that an RPAPL 1304 notice constituting a debt-collection communication therefore must convey this "mini -Miranda" warning, so under the Supremacy Clause (see U.S. Const, art VI, cl 2), the separate-envelope requirement of RPAPL 1304(2)-and Kessler and its progeny construing it-must yield to the FDCPA.
Plaintiff's argument fails for numerous reasons. One is that the extraneous language in plaintiff's RPAPL 1304 notice far exceeds the FDCPA "mini- Miranda" warning by including advisories about efforts by the State and City of New York to expand homeowner counseling services, and other advice having nothing to do with the FDCPA. Another is that plaintiff fails to show that anything in RPAPL 1304, or any other statute whether federal or state, requires that the 90-day pre-commencement notice of RPAPL 1304(1) must be the first debt-collection notice that a plaintiff sends in connection with an impending foreclosure. By its terms, the FDCPA preempts inconsistent state laws only to the extent of the inconsistency (see 15 USC § 1692n). Because a foreclosure plaintiff can comply with the FDCPA "mini- Miranda" warning prior to sending an RPAPL 1304 notice, there is no facial conflict between the two statutes so as to preempt RPAPL 1304.
Even if, theoretically, there could be a facial conflict between the FDCPA's "mini- Miranda" requirement and and RPAPL 1304, plaintiff fails to show the further preemption requirement of FDCPA remedial superiority. While the contours of FDCPA preemption have been hotly contested (see generally Arellano v Clark County Collection Serv., LLC, 875 F.3d 1213 [9th Cir 2017]; Aker v Americollect, Inc., 854 F.3d 397 [7th Cir 2017]), one clear agreement among the cases takes on face value the FDCPA's explicit language, and thus congressional intent, not to preempt any state law whose protection "affords any consumer [] greater than the protection provided by [the FDCPA]" (15 USC § 1692n). Thus, the typical section 1692n preemption analysis turns on which law accords superior protection to the class of consumers who are the respective laws' intended beneficiaries (see e.g. McDermott v Marcus, Erico, Emmer & Brooks, P.C., 775 F.3d 109 [1st Cir 2014]; Desmond v Phillips & Cohen Assocs., Ltd., 724 F.Supp.2d 562 [WD Pa 2010]; Yang v DTS Fin. Group, 570 F.Supp.2d 1257, 1261 [SD Cal 2008]; Alkan v Citimortgage, Inc., 336 F.Supp.2d 1061 [ND Cal 2004]).
Here, plaintiff fails to show that the FDCPA accords superior consumer protection relative to RPAPL 1304 to the class of residential foreclosure defendants who are the statute's intended beneficiaries. Moreover, this Court is skeptical that any residential foreclosure plaintiff could make that showing. The FDCPA "mini- Miranda" warning requires only that a debt collector specify on "initial communication" with the alleged debtor "that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose," and that future communications specify their origin from a debt collector attempting to collect a debt (15 USC § 1692e[11]). These forced disclosures inform debtors about who the collector is and the purpose for which information will be used. By sharp contrast, the RPAPL 1304 notice gives alleged mortgage debtors concrete tools to avoid litigation and keep their homes-including a payoff amount, a 90-day period in which to make workout options, a list of free and trained housing counselors in their area prepared to offer assistance, contact information for the Department of Financial Services and Office of the Attorney General, and a list of specific rights (see RPAPL 1304[1]). The numerosity and breadth of these RPAPL 1304 protections accord far greater consumer protections than the FDCPA "mini- Miranda" warning alone, and thus, this Court finds that the FDCPA does not preempt RPAPL 1304 under the FDCPA's own terms (see 15 USC § 1692n).
To be sure, two courts have credited the argument that RPAPL 1304 does not accord greater protections than the FDCPA in relation to mortgage debt collection, and therefore the latter preempts the former (see CIT Bank, N.A. v Neris, ___ F.Supp.3d ___, 2022 WL 1799497 [SD NY, Jun 2, 2022]); Bank of NY Mellon v Luria, ____ Misc.3d ____, 2022 NY Slip Op 22218 [Sup Ct Putnam Co, Jul 18, 2022] [" Luria II "]). Leaving aside that plaintiff does not make a substantial record showing on this issue but mainly cites to these two cases, this Court finds substantial prudential reasons why it could not follow Neris and Luria even were it inclined to do so.
Before the Luria II court was the volume of Kessler case law binding on the trial courts of the Second Department, including Kessler itself, which addressed the FDCPA mini- Miranda issue in relationship with the RPAPL 1304(2) separate-envelope requirement. Following fast on Kessler 's heels, Lanzetta, Siriani and Drakakis consistently reaffirmed that RPAPL 1304 notices transmitting the FDCPA "mini- Miranda" warning, or consumer information about bankruptcy, thereby violate the separate-envelope requirement. Neither plaintiff here, nor Luria II, addressed the prudential issues that would arise if this Court, or any others bound to apply clear Appellate Division precedents, could set aside those precedents in the manner plaintiff requests.
The Court notes that Luria I raised preemption issues sua sponte and even narrated that it did so (see Luria I, 75 Misc.3d 1205, at *3-4). Even had the Luria parties themselves raised such concerns, Luria I observed only that the plaintiff "had good reason to believe that [the "miniMiranda "] language it appended to the RPAPL 1304 notice was required to assure its compliance with the FDCPA"-not that the FDCPA, in fact, required the "miniMiranda" warning (id.). Luria II ultimately concluded that the FDCPA does conflict with the RPAPL 1304(2) separate-envelope mandate and that the former preempts the latter because, in its view, RPAPL 1304 accords less protection than the FDCPA. While the current record accords this Court no basis to wade into that thicket, the Court observes that Luria II reached its conclusion mainly on agreement with the Kessler dissenter that congressional intent for the FDCPA was clear while the" Kessler majority was unable to discern the Legislature's intent" in promulgating the separate-envelope mandate of RPAPL 1304(2) (Luria II, - Misc.3d -, 2022 NY Slip Op 22218, at *8, citing Kessler, 202 A.D.3d at 18 [Miller, J., dissenting]).
As for Neris, if federal preemption considerations are to pull Kessler and its progeny from the ground root and branch, only the New York Court of Appeals can do so-a result the Kessler court itself invited that Court to consider (see NY Const, art VI, § 3[b][6]; CPLR 5602[a][1][i]). It is not for this Court to predict how the Court of Appeals might decide the pending Kessler appeal much less predict that the Court of Appeals will overturn Kessler. That prerogative lies with federal courts that, in applying New York law, properly may disregard Appellate Division decisions "upon persuasive evidence that the New York Court of Appeals, which has not ruled on [the issues presented], would reach a different conclusion" (AEI Life LLC v Lincoln Benefit Life Co., 892 F.3d 126, 139 n15 [2d Cir 2018], quoting Pahuta v Massey-Ferguson, Inc., 170 F.3d 125, 134 [2d Cir 1999]). Such is precisely what the U.S. District Court did in Neris, which predicted that the New York Court of Appeals would overturn Kessler and, on that basis, declined to follow Kessler and instead held that the FDCPA preempts the RPAPL 1304(2) separate-envelope requirement (see Neris, ____ F.Supp.3d ____, 2022 WL 1799497 at *5-6). Whether or not Neris was correct, this Court must follow Kessler and its progeny unless and until the New York Court of Appeals determines otherwise.
For the above reasons, this Court respectfully parts ways with Luria II and prudentially cannot follow Neris. Applying the law that this Court is bound to follow, this Court cannot grant plaintiff's preemption argument. Instead, under Kessler and its progeny, this Court concludes that plaintiff's RPAPL 1304 notice is fatally defective for failure to satisfy the separate-envelope requirement of RPAPL 1304(2). Defendant therefore is correct that plaintiff cannot carry its burden to prove strict compliance with RPAPL 1304. Because plaintiff's proof of such strict compliance is a condition precedent to commence this action, defendant's cross motion granting summary judgment on his RPAPL 1304 defense is granted, and this action must be dismissed (see DeMarco, 205 A.D.3d at 945; Dennis, 181 A.D.3d at 866; Offley, 170 A.D.3d at 1241; DePasquale, 113 A.D.3d at 596). It follows that plaintiff's summary judgment motion must be denied as moot.
Conclusion
In the event that the Court of Appeals determines the pending Kessler appeal in a manner that bears on this action, plaintiff is invited to make a further renewal motion on that basis to vacate this instrument and consider its motion for judgment of foreclosure and sale on its merits.
The Court has considered the parties' remaining contentions and deems them to be without merit or moot in light of the foregoing. Accordingly, it is hereby
ORDERED that defendant's motion to renew the Decision and Order of this Court dated June 12, 2018, is granted (Motion Sequence #7); and it is further
ORDERED that on renewal, defendant's RPAPL 1304 affirmative defense is sustained, defendant's cross motion to dismiss is granted, and this action is dismissed; and it is further
ORDERED that plaintiff's motion for judgment of foreclosure and sale (Motion Sequence #5) is denied as moot; and it is further
ORDERED that the computational referee hereinbefore appointed is discharged, and within 30 days plaintiff shall pay such referee all fees hereinbefore earned and file a suitable affirmation of such payment; and it is further
ORDERED that the Notice of Pendency is cancelled, and the County Clerk of the County of Rockland is directed to notate such cancellation on the records of the property; and it is further
ORDERED that if the Court of Appeals determines the pending Kessler appeal in a manner that bears on this action, plaintiff may move by Order to Show Cause to renew this motion; and it is further
ORDERED that within five days hereof, counsel for defendant shall serve this Decision and Order, with Notice of Entry, on plaintiff and the computational referee via NYSCEF.
The foregoing constitutes the Decision and Order of this Court.