In Bank of Am., N.A. v Kessler, the Second Department established a "bright-line" rule with respect to the contents of section 1304 90-day notices, holding that "inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in [section 1304] constitutes a violation of the separate envelope requirement of RPAPL 1304 (2)." (202 AD3d at 14.) Thereafter, in Ocwen Loan Servicing, LLC v Sirianni, the Second Department held that the inclusion in a section 1304 notice of language akin to that at issue here—i.e., the FDCPA debt collector advisory and notice concerning the rights of borrowers in bankruptcy—runs afoul of the Kessler "bright-line" rule and violates RPAPL 1304 (2). (202 AD3d at 705; see also US Bank N.A. v Lanzetta, 207 AD3d at 502; Citimortgage, Inc. v Dente.) Since compliance with RPAPL 1304 is a condition precedent to a foreclosure action, the section 1304 violations found in Kessler, Sirianni, Lanzetta and Dente resulted in the dismissal of those actions. (See id.)
The Federal Fair Debt Collection Practices Act