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THE INCLUSION OF ADDITIONAL INFORMATION IN THE ENVELOPE CONTAINING THE RPAPL 1304 90-DAY FORECLOSURE NOTICE DOES NOT VIOLATE RPAPL 1304 AND IS NOT A PROPER BASIS FOR AWARDING SUMMARY JUDGMENT TO DEFENDANT IN A FORECLOSURE ACTION (CT APP) ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the appellate division, determined the inclusion of additional information in the envelope with the 90-day foreclosure notice required by RPAPL 1304 does not violate the statute and therefore is not a basis for summary judgment in favor of a defendant in a foreclosure action:

The operative statutory language here contains two requirements: (1) the notice “shall include” the specified language and information; and (2) the notice must be sent “in a separate envelope from any other mailing or notice” … . As to the first requirement, subdivision (1) does not say that the notice must state only the cautionary language set forth in the statute, but rather that the notice “shall include” that language. Where the “natural signification of the words employed” “ha[s] a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add or take away from that meaning” Here, the notice indisputably contains all of the mandatory language set forth in the version of section 1304 (1) in effect at the time Bank of America commenced this action. The statute says that the notice “shall include” certain information; the notice here does so.

The question then is the constraint imposed by the requirement that the envelope not contain “any other mailing or notice.” The bright line rule adopted by the lower courts effectively defines “any other mailing or notice” as “any additional material or information whatsoever.” Although it might be possible to read “other notice” as the lower courts did—such that any deviation from the statutory language, however minor, would void the notice—that interpretation would stand in great tension with “shall include,” a phrase that contemplates the addition of something else. The statute must be given “a sensible and practical over-all construction, which . . . harmonizes all its interlocking provisions” … . Application of a bright line rule here would require the use of a highly constrained definition of “other,” where it is more appropriately read to mean mailings or notices “of a different kind.” Here, “other mailing or notice” more aptly refers other kinds of notices, such as pre-acceleration default notices, notices disclosing interest rate changes to borrowers with adjustable-rate mortgages … . Bank of Am., N.A. v Kessler, 2023 NY Slip Op 00804, CtApp 2-14-23

Practice Point: The inclusion of additional information in the same envelope with the RPAPL 1304 90-day foreclosure notice does not violate RPAPL 1304 and is no longer a basis for awarding summary judgment to a defendant in a foreclosure action.

 

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