FSB v. Eric Leder, etc., appellant, et al., defendants. (2026)

Argued—April 6, 2026

DECISION & ORDER

W/

In an action to foreclose a mortgage, the defendant Eric Leder appeals from an order of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated September 14, 2023.  The order, insofar as appealed from, granted those branches of the plaintiff's renewed motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and denied that defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In October 2020, the plaintiff commenced the instant action against, among others, the defendant Eric Leder (hereinafter the defendant).  The defendant served an answer raising various affirmative defenses, including the plaintiff's failure to comply with the pre-litigation notice requirements of RPAPL 1304 and paragraph 22 of the mortgage agreement.

In August 2023, the plaintiff made a renewed motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The defendant opposed the renewed motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against him.  In an order dated September 14, 2023, the Supreme Court, among other things, granted those branches of the plaintiff's renewed motion and denied the defendant's cross-motion.  The defendant appeals.

RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, ․ including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.”  RPAPL 1304(2) requires that “[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice.”  Here, included in the envelope with the RPAPL 1304 notice was a second notice providing information of additional rights the borrower might have in connection with certain bankruptcy proceedings.  Since the information concerning a debtor's rights in bankruptcy was relevant to avoiding foreclosure and was not false or misleading, the inclusion of this information with the 90–day notice did not violate the “separate envelope” requirement of RPAPL 1304(2) (see Bank of Am., N.A. v. Kessler, 39 NY3d 317, 328;  Deutsche Bank Natl. Trust Co. v Clark, 246 AD3d 1029;  Wells Fargo Bank, N.A. v. Smart, 234 AD3d 1016, 1018;  Bank of Am., N.A. v. Gonzalez, 219 AD3d 433, 435).

Additionally, the loan servicer was authorized to provide the 90–day notice pursuant to RPAPL 1304 and the notice of default required under the terms of the mortgage agreement in the manner that it did.  A limited power of attorney authorized the loan servicer, Select Portfolio Services, Inc. (hereinafter SPS), as the attorney-in-fact of the “Owner Trustee,” i.e., the plaintiff, to act “in the Trust's name, place and stead” and “for the Owner Trustee's benefit,” in connection with certain “enumerated transactions.”  These “enumerated transactions” included, with respect to the foreclosure of the subject mortgage, “the preparation and filing of notices of default,” and “the preparation and execution of such other documents and performance [of] such other actions as may be necessary under the terms of the Mortgage, Deed of Trust or state law to expeditiously complete said transactions.”  Contrary to the defendant's contention, in sending out the statutorily required 90–day notice pursuant to RPAPL 1304 and contractually required notice of default pursuant to the mortgage agreement, SPS was acting “in the Trust's name, place and stead,” which it named in the notice, and “for the Owner Trustee's benefit,” as authorized by the limited power of attorney.  Moreover, contrary to the defendant's contention, there is no requirement in the limited power of attorney that the notices sent thereunder by SPS expressly name the “Owner Trustee”/plaintiff.

The parties' remaining contentions are either without merit or improperly raised for the first time on this appeal.

GENOVESI, J.P., DOWLING, WAN and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court