On February 14, 2023, New York’s highest court issued its long-awaited decision in Bank of America, N.A. v. Kessler. (Click here for a copy of the decision.) A lower appellate court had previously decided that statutorily required pre-foreclosure notices (“90-day Notices”) were invalid if they included additional information, such as FDCPA and SCRA warnings, or bankruptcy disclaimers, because 90-day Notices are required to be sent in a “separate envelope” from all other notices. In this great win for the industry, the Court held that “accurate statements that further the underlying statutory purpose of providing information to borrowers that is or may become relevant to avoiding foreclosure do not constitute an ‘other notice’ [under RPAPL 1304(2)]” and therefore do not violate the “separate envelope” rule. The decision saves many pending foreclosures from dismissal, and potentially allows others that were previously dismissed to be restored. Stay tuned for a more thorough article to be published in the USFNews next week that will discuss the import of the Kessler decision and its intersection with the Foreclosure Abuse Prevention Act enacted December 30, 2022.

USFN is extremely proud to have participated in the Kessler case as an amicus and is gratified to see arguments it advanced be accepted by the Court. USFN member McCalla Raymer Leibert Pierce, LLC (Rich Haber and Brian Scibetta) was counsel of record for USFN in connection with its amicus motion and brief filings, and the following USFN members also contributed to planning, drafting and editing: Frenkel Lambert Weiss Weisman & Gordon, LLP (Keith Abramson); Aldridge Pite, LLP (Susan West and Christopher Medina); Schiller, Knapp, Lefkowitz & Hertzel, LLP (Gary Lefkowitz); Berkman, Henoch, Peterson & Peddy, P.C. (Megan McNamara and Hillary Prada); and Bendett & McHugh, P.C. (Rob Wichowski, former USFN Amicus Brief Task Force Chair). Thank you to all participating firms for lending your time and expertise to this important issue!

If there is a matter now or in the future that you think might benefit from amicus support by USFN, please reach out to Rich Haber, current USFN Amicus Brief Task Force Chair (rich.haber@mccalla.com).