Appellate Division, Second Department Issues Decisions On NY RPAPL 1304 Notices

On December 15, 2021, the Second Department issued an opinion in the case of Bank of America v. Kessler that considered the strict application of RPAPL 1304.  The Court noted that the statute specifically provides that "[t]he notices 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."  The Court 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)."  The Court disagreed with the dissent that suggested that the additional language was clear and unambiguous and did not violate the plan language, spirit or intent of the statute.