The parallels between RPAPL articles 7 and 13 are striking. The RPAPL 1304 90-day notice is a statutory prerequisite for, or condition precedent to, a mortgage foreclosure action. (See Everhome Mtge. Co. v Aber, 195 AD3d 682 [2d Dept 2021], supra.) It is not a pleading nor any part of the foreclosure action, but rather notice to the borrower of what can or must be done to avoid foreclosure. By its express terms section 1304 requires service of the notice "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower." (See RPAPL 1304 [1] [emphasis added].) The mortgage foreclosure action itself is "commenced by filing a summons and complaint" (see CPLR 304 [a]), and New York law does not contemplate much less require that the 90-day notice be filed, either with the summons and complaint or with the superintendent of financial services. (See RPAPL 1304, 1306 [2].) Like the RPAPL 711 three-day notice, the RPAPL 1304 90-day notice is simply not a pleading.
This court accordingly concludes that (1) the RPAPL 1304 90-day notice does not fall within the "formal pleading" exception set forth in 15 USC § 1692e (11); (2) since the section 1304 notice was a communication made in connection with the collection of a debt, Nationstar as a debt collector was required by the FDCPA to give defendant Luria the section 1692e (11) "mini-Miranda" warning in that notice; and (3) to the extent that Kessler and its progeny prohibit the inclusion of the "mini-Miranda" warning in a section 1304 90-day notice, the rule promulgated by those cases is inconsistent with the provisions of the FDCPA.
The FDCPA Bankruptcy Advisory