Supreme Court, Suffolk County, March 1, 2022

Gross Polowy, LLC, Williamsville, for plaintiff.

Young Law Group, PLLC, Bohemia, for Michael Sackaris, defendant.

It is ordered that the plaintiff's motion for summary judgment is denied, and it is further ordered that the cross motion of defendant for summary judgment is granted and the action is dismissed.

The basic facts of the action are articulated in the prior decisions and orders of Judge Hudson (NY St Cts Elec Filing [NYSCEF] Doc Nos. 53, 84, 127). Presently, the plaintiff has moved for summary judgment and the defendant has cross-moved for summary judgment.

The court first addresses defendant's 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 AD3d 836 [2d Dept 2019]; Bank of N.Y. Mellon v Zavolunov, 157 AD3d 754 [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 Am., N.A. v Kessler, 202 AD3d 10, 14 [2d Dept 2021]; see Wells Fargo Bank, N.A. v DeFeo, 200 AD3d 1105 [2d Dept 2021]; Citimortgage, Inc. v Dente, 200 AD3d 1025 [2d Dept 2021]). This "strict approach" provides clear guidelines that any "additional material" {**74 Misc 3d at 925}violates the requirements of RPAPL 1304. Here, the additional material provided in the notice is not within the section's language^[FN1] (Ocwen Loan Servicing, LLC v Sirianni, 202 AD3d 702 [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 AD3d 813 [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

"following conduct is a violation of this section: . . . 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 BR 415, 423 [MD Fla 2015]), the court held that proofs of claim filed by a debtor were "formal pleadings" so as not to require the disclosure notice. The notice under RPAPL 1304 is a condition precedent to commencing a foreclosure action required by the statute and compliance with the statute must be stated in the [*2]complaint^[FN2] 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{**74 Misc 3d at 926} statement under the FDCPA.^[FN3] This is in harmony with many courts that have held that a broad application of the formal pleading exception should be applied (see e.g. Rivas v Pollack & Rosen, P.A., 2019 WL 6468709, 2019 US Dist LEXIS 207460 [SD Fla, Dec. 2, 2019, Case No. 19-cv-61815-Bloom/Valle]). Consequently, there are no inconsistencies between the federal statute and the state statute as interpreted by the Appellate Division, Second Judicial Department.^[FN4]

As plaintiff's own submissions have established that it did not strictly comply with the statutorily mandated condition precedent of RPAPL 1304, the court is compelled to grant defendant summary judgment dismissing the complaint. In light of this determination, it is unnecessary to address the other issues raised by defendant's cross motion, as well as those raised by plaintiff's motion, which is denied.

It is noted that section 1304 is in article 13 of the Real Property Actions and Proceedings Law, titled Action to Foreclose a Mortgage, further indicating documents involved relate to a legal action.