Relying on Kessler and its progeny—especially Ocwen Loan Servicing, LLC v Sirianni (202 AD3d 702 [2d Dept 2022])—defendant argues that by including this language in the 90-day notice plaintiff violated RPAPL 1304 (2), which 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."
In an interim decision dated May 11, 2022, this court wrote:
"The additional 'material' included in the November 29, 2016 90-day notice was a brief advisory dictated by the Federal [Fair] Debt Collection Practices Act ('FDCPA'), 15 USC § 1692 et seq. There were two components. First:
"Nationstar is a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose.
"The 'debt collector' advisory is what is colloquially known as the 'mini-Miranda' warning required in certain communications with a debtor by the FDCPA. See, 15 USC § 1692e(11). Second:
"However, if you are currently in bankruptcy or have received a discharge in bankruptcy, this communication is not an attempt to collect a debt from you personally to the extent that it is included in your bankruptcy or has been discharged, but is provided for informational purposes only.
"The 'bankruptcy' advisory was patently designed to avoid any imputation that the § 1304 notice implicitly conveyed a 'false representation of the character, amount, or legal status of any debt; or [t]he threat to take any action that cannot legally be taken or that is not intended to be taken' in violation of the FDCPA. See, 15 USC § 1692e, subd. (2)(A), (5).