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Second Foreclosure Action Not Prohibited Where First Is Not Pending and Did Not Result in a Judgment

Reversing Supreme Court, the Second Department determined Real Property Actions and Proceedings Law (RPAPL 1371 (3)) must be strictly construed and, by its terms, the statute did not prohibit the plaintiff bank from instituting a second foreclosure proceeding.  The first proceeding had been settled and discontinued and no judgment had been entered:

…[T]he instant action was not barred by RPAPL 1301(3). Pursuant to RPAPL 1301, ” [t]he holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must only elect one of these alternate remedies'” … . “The purpose of the statute is to avoid multiple lawsuits to recover the same mortgage debt” … . Courts have recognized that “this statute is to be strictly construed since it is in derogation of a plaintiff’s common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time'” … . RPAPL 1301(3) provides that “[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought” (emphasis added). However, where a “foreclosure action is no longer pending and did not result in a judgment in the plaintiff’s favor, the plaintiff is not precluded from commencing a separate action” without leave of the court … . Here, the prior foreclosure action was settled and discontinued, without the entry of any judgment. Since the foreclosure action was not pending at the time the Bank commenced the instant action to recover on the guaranty and no judgment was entered for the Bank, RPAPL 1301(3), which must be strictly construed …, is not applicable … . Hometown Bank of Hudson Val. v Belardinelli, 2015 NY Slip Op 02732, 2nd Dept 4-1-15

 

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