Article VI, clause 2 of the United States Constitution provides in pertinent part that "[t]his Constitution, and the {**76 Misc 3d at 729}Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." State law is preempted under the Supremacy Clause by a federal statute if and to the extent that Congress has so directed through explicit statutory language. (See English v General Elec. Co., 496 US 72, 78-79 [1990].) If and to the extent that the FDCPA by virtue of 15 USC § 1692n preempts section 1304 as interpreted by Kessler, the FDCPA is supreme and precludes application of the Kessler "bright-line" rule to the motion before this court. Since the Second Department has yet to grapple with FDCPA preemption issues, one lower court—in U.S. Bank N.A. v Sackaris (74 Misc 3d 923 [Sup Ct, Suffolk County 2022])—properly declined to apply Kessler without first conducting an analysis to determine whether RPAPL 1304 as interpreted by Kessler and its progeny was inconsistent with the requirements of the FDCPA. (See id. at 925-926.) This court not only may but must do likewise.
RPAPL 1304 and Bank of Am., N.A. v Kessler
RPAPL 1304 (1) provides that,
"[n]otwithstanding any other provision of law, with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower . . . which shall include the following."