You are here: / / Where Proof of the Fair Market Value of Foreclosed Property (Offered in...
, ,

Where Proof of the Fair Market Value of Foreclosed Property (Offered in Support of a Motion for a Deficiency Judgment) Is Insufficient, Rather than Deny the Motion Outright, the Court Should Direct the Bank to Submit Additional Proof

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined Supreme Court properly failed to award a post-foreclosure-sale deficiency judgment to the bank because the bank’s proof of the fair market value of the foreclosed property, although uncontested, was insufficient.  However, Supreme Court should have allowed the bank to present additional proof establishing the fair market value:

RPAPL 1371 (2) directs that, when a lender makes a motion for a deficiency judgment,

“the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment” … .

This provision is a directive that a court must determine the mortgaged property’s “fair and reasonable market value” when a motion for a deficiency judgment is made. As such, when the court deems the lender’s proof insufficient in the first instance, it must give the lender an additional opportunity to submit sufficient proof, so as to enable the court to make a proper fair market value determination. * * *

It is, of course, within the court’s discretion to elucidate the type of proof it requires so it can render a proper determination as to fair market value. The court may also order a hearing if it deems one necessary. In proceedings that are governed by section 1371, the court is in the best position to determine the type of proof that will allow it to comply with the directives of that section. Lenders seeking deficiency judgments, however, must always strive to provide the court with all the necessary information in their first application.  Flushing Sav. Bank, FSB v Bitar, 2015 NY Slip Op 04678, CtApp 6-4-15

 

You might also like
No Need to Request Missing Witness Charge to Argue Absence of Witness to Jury
THE APPELLATE DIVISION’S VACATION OF DEFENDANT’S FIRST DEGREE MURDER CONVICTION WAS AFFIRMED; THE PEOPLE DID NOT PROVE THE “RELISHING THE INFLICTION OF EXTREME PAIN” ELEMENT (CT APP).
DEFENDANT’S CHALLENGE TO CERTIFICATION AS A SEX OFFENDER WAS FIRST RAISED IN THE APPELLATE DIVISION AND WAS NOT PRESERVED FOR CONSIDERATION BY THE COURT OF APPEALS; THE ILLEGAL SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY BECAUSE SORA CERTIFICATION IS NOT PART OF THE SENTENCE (CT APP).
THE DNA EVIDENCE GENERATED BY THE TRUEALLELE CASEWORK SYSTEM WAS PROPERLY ADMITTED IN EVIDENCE; THE DEFENSE WAS NOT ENTITLED TO THE TRUEALLELE SOFTWARE CODE EITHER IN CONNECTION WITH THE FRYE HEARING OR TO CONFRONT THE WITNESSES AGAINST DEFENDANT; THE CONCURRENCE STATED WHETHER THE CODE WOULD BE AVAILABLE TO THE DEFENSE UNDER A PROTECTIVE ORDER REMAINED AN OPEN QUESTION (CT APP).
WAIVER OF DECLARATORY JUDGMENT ACTIONS TO RESOLVE DISPUTES ARISING FROM A LEASE WAS NOT AGAINST PUBLIC POLICY AND WAS ENFORCEABLE, THE COMMERCIAL LEASE WAS NEGOTIATED BY SOPHISTICATED, COUNSELED PARTIES (CT APP).
DEFENDANT’S CHALLENGES TO RESTRICTIONS ON VOIR DIRE, HIS ARGUMENT A PRISON SENTENCE DURING COVID VIOLATED THE EIGHTH AMENDMENT, AND HIS CONSTITUTIONAL CHALLENGES TO NEW YORK’S WEAPONS-POSSESSION REGIME, REJECTED; THE DISSENT ARGUED THE PRESUMPTION OF AN INTENT TO USE AN UNLICENSED WEAPON IS UNCONSTITUTIONAL AND VOIR DIRE QUESTIONS RELATED TO GUN CONTROL AND JUSTIFICATION SHOULD HAVE BEEN ALLOWED (CT APP).
POST-RELEASE SUPERVISION (PRS) CAN PROPERLY BE IMPOSED WHERE A DEFENDANT IS SENTENCED UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); DEFENDANT WAIVED HER RIGHT TO APPEAL THE SENTENCE AS EXCESSIVE (CT APP).
Pre-Closing Documents Can Not Be Used to Prove Conveyance or the Issuance of Title Insurance

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Agency’s Failure to Follows Its Own Regulations Rendered Determination... Statutory Prohibition of Court Review of Civil Service Commission’s Determination...