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Bank of Am., N.A. v. Kessler

Bank of Am., N.A. v. Kessler

Supreme Court of New York, Appellate Division, Second Department

December 15, 2021, Decided

2018-00886, (Index No. 54780/14)

Opinion

 [**278]  [*11]   DUFFY, J.

OPINION & ORDER

This appeal requires this Court to address the issue of how exacting the requirement of strict compliance is with respect to the "separate envelope" mandate of RPAPL 1304; to wit, in a mortgage [***2]  foreclosure action, how should the "separate envelope" requirement of RPAPL 1304(2), which provides that "notices required  [**279]  by this section shall be sent . . . in a separate envelope from any other mailing or notice," be construed?

For the reasons that follow, we find that the Supreme Court properly determined that the plaintiff failed to comply with the strict requirements of RPAPL 1304, and thus, a condition precedent to this foreclosure action was not met. As such, the court properly denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Andrew Kessler and Reiko Kessler (hereinafter together the defendants), for summary judgment dismissing the defendants' second, third, and fourth affirmative defenses, and for an order of reference, and granted  [*12]  Andrew Kessler's cross motion for summary judgment dismissing the complaint insofar as asserted against him.

Background of the Action

As is relevant to this appeal, in March 2014, the plaintiff commenced this action against, among others, the defendants to foreclose a mortgage on real property located in Croton-on-Hudson, Westchester County. The plaintiff alleged, among other things, [***3]  that it was the owner and holder of the note and the mortgage at issue and that Andrew Kessler defaulted in payment of the mortgage as of September 2013. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, for summary judgment dismissing the defendants' second, third, and fourth affirmative defenses, and for an order of reference. Andrew  [****2]  Kessler opposed the plaintiff's motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff failed to comply with RPAPL 1304. In an order dated November 30, 2017 (hereinafter the November 2017 order), the Supreme Court denied the plaintiff's motion and granted Andrew Kessler's cross motion. The plaintiff appeals from so much of the November 2017 order as denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, for summary judgment dismissing the defendants' second, third, and fourth affirmative defenses, and for an order of reference, and granted Andrew Kessler's cross motion. We affirm.

Statutory Interpretation

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202 A.D.3d 10 *; 160 N.Y.S.3d 277 **; 2021 N.Y. App. Div. LEXIS 7050 ***; 2021 NY Slip Op 06979 ****; 2021 WL 5913148

 [****1]  Bank of America, N.A., appellant, v Andrew Kessler, respondent, et al., defendants.

Notice: THE PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

 THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

Subsequent History: Motion denied by, Motion granted by, Question certified by Bank of America, N.A. v. Kessler, 2022 N.Y. App. Div. LEXIS 4101 (N.Y. App. Div. 2d Dep't, May 23, 2022)

Prior History:  [***1] APPEAL by the plaintiff, in an action to foreclose a mortgage, from an order of the Supreme Court (Alan D. Scheinkman, J.), dated November 30, 2017, and entered in Westchester County. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Andrew Kessler and Reiko Kessler, for summary judgment dismissing the second, third, and fourth affirmative defenses of those defendants, and for an order of reference, and granted the cross motion of the defendant Andrew Kessler for summary judgment dismissing the complaint insofar as asserted against him.

Bank of America, N.A. v. Kessler, 2017 N.Y. Misc. LEXIS 13661 (N.Y. Sup. Ct., Nov. 30, 2017)

CORE TERMS

notice, envelope, borrower, lender, mailing, summary judgment, homeowners, mortgage, additional language, requisite notice, foreclosure, foreclosure action, cross motion, affirmative defense, Appeals, mortgage loan, provisions, assignee, servicer, strict compliance, reference order, fail to comply, plain language, constitutes, courts, mortgage foreclosure, valid notice, counseling, inclusion, agencies

Governments, Legislation, Interpretation, Evidence, Burdens of Proof, Allocation, Real Property Law, Financing, Foreclosures, Judicial Foreclosures