The plaintiff proffered evidence that (1) Nationstar Mortgage never possessed an ownership interest in the defendant's loan, (2) Nationstar was at all times acting solely as a [*3]mortgage servicer on behalf of the beneficial owner, and (3) Nationstar first undertook to act as a mortgage servicer for defendant's loan approximately six months after the loan was in default. Plaintiff accordingly argues that Nationstar was a "debt collector" within the meaning of the FDCPA, and that the language cited by defendant as a violation of Kessler was inserted in compliance with the requirements of the FDCPA.
Defendant asserts that this court is bound by Second Department holdings, particularly Sirianni, that inclusion of such language as that at issue here in an RPAPL 1304 notice violates Kessler's "bright-line" rule.[FN1] Defendant further argues that the language at issue was not required by federal law to{**76 Misc 3d at 728} be included in the section 1304 90-day notice because Nationstar was not a "debt collector" nor was that notice issued "in connection with the collection of any debt" within the meaning of the FDCPA.
Kessler and its progeny do not resolve the FDCPA preemption issue presented in this case.
As a threshold matter, the court must address the defendant's contention that Kessler and Sirianni are dispositive of the issues presented here and require the relief defendant requests irrespective of any issues arising under the FDCPA.
The FDCPA per 15 USC § 1692n may preempt RPAPL 1304 as interpreted by Kessler and Sirianni. Section 1692n provides: