2022 NY Slip Op 22218

Citation
2022 NY Slip Op 22218
Jurisdiction
New York (state)
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cross_accepted_sealed
Original Source
https://www.nycourts.gov/reporter/3dseries/2022/2022_22218.htm ↗

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[2] In light of Arellano, one may appreciate the gravity of the conflict between the FDCPA and RPAPL 1304 as construed by the Second Department in Kessler and its progeny. While the FDCPA regulates communications between debt collectors and debtors to protect even gullible, ignorant, unthinking or credulous consumers, section 1304 requires just such a communication as a prerequisite to a foreclosure action while concomitantly (per Kessler) prohibiting language that is either explicitly required by the FDCPA (e.g., the "mini-Miranda" warning), or otherwise needful (e.g., the bankruptcy advisory) to avoid potentially false, misleading or deceptive representations and thereby afford debtors the protection Congress intended in enacting the FDCPA. Hence, for purposes of 15 USC § 1692n, the "bright-line" rule promulgated by Kessler and its progeny is "inconsistent" with the provisions of the FDCPA.