Footnote 2:It is unclear whether the FDCPA was implicated by Kessler or any of its Second Department progeny. A creditor seeking to enforce a debt it owns is not subject to the obligations of a "debt collector" under the FDCPA (see 15 USC § 1692a [4], [6] [A]), and a mortgage servicer is deemed to be a "debt collector" under the FDCPA only if (as in this case) the mortgage was in default at the time the servicer began servicing the debt. (See Roth v CitiMortgage Inc., 756 F3d 178, 183 [2d Cir 2014]; Zirogiannis v Seterus, Inc., 221 F Supp 3d 292, 302 [ED NY 2016], affd 707 Fed Appx 724 [2d Cir 2017]; JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903 [2d Dept 2015].)
Footnote 3:The version of RPAPL 1304 in effect in November of 2016, when the 90-day notice at issue here was mailed, continued: "You can cure this default by making the payment of . . . dollars by . . . ."
Footnote 4:See Grden v Leikin Ingber & Winters PC, 643 F3d 169, 173 (6th Cir 2011); Gburek v Litton Loan Servicing LP, 614 F3d 380, 384-385 (7th Cir 2010).
Footnote 5:RPAPL 711 (2) at that time provided that a summary proceeding for recovery of real property may be maintained where the tenant has defaulted in the payment of rent and the tenant has been given three days' notice in writing requiring payment of the rent or possession of the premises.