You are here: / / ONCE PLAINTIFF RELEASED THE MORTGAGE UPON PAYMENT OF LESS THAN THE VALUE...
,

ONCE PLAINTIFF RELEASED THE MORTGAGE UPON PAYMENT OF LESS THAN THE VALUE OF THE NOTE, PLAINTIFF COULD PROCEED AGAINST THE NOTE AND GUARANTY BY AMENDING THE FORECLOSURE COMPLAINT.

The Second Department, reversing Supreme Court, determined, once plaintiff agreed to release a mortgage in return for sale proceeds which were less than the value of the note, plaintiff could then commence a proceeding on the note and the guaranty. The court further held that the action on the note and guaranty could be accomplished by amending the original foreclosure complaint:

“RPAPL 1301(3) . . . prohibits a party from commencing an action at law to recover any part of the mortgage debt while the foreclosure proceeding is pending or has not reached final judgment, without leave of the court in which the foreclosure action was brought'” … . Conversely, “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, since, pursuant to the parties' stipulation, the plaintiff agreed to accept the net proceeds of the sale in exchange for releasing the property from the mortgage and there was no judgment in the plaintiff's favor, the plaintiff was not precluded from seeking to recover on the note and guaranty by RPAPL 1301(3), “a statute which must be strictly construed” … .

Furthermore, there is no reason the plaintiff could not seek such relief by seeking leave to amend its complaint, rather than by commencing a new action … . TD Bank, N.A. v 250 Jackson Ave., LLC, 2016 NY Slip Op 01828, 2nd Dept 3-16-16

FORECLOSURE (PLAINTIFF COULD PROCEED AGAINST NOTE AND GUARANTY AFTER RELEASING MORTGAGE)/NOTE (FORECLOSURE, PLAINTIFF COULD PROCEED AGAINST NOTE AND GUARANTY AFTER RELEASING MORTGAGE)/MORTGAGES (FORECLOSURE, PLAINTIFF COULD PROCEED AGAINST NOTE AND GUARANTY AFTER RELEASING MORTGAGE)/DEBTOR-CREDITOR  (FORECLOSURE, PLAINTIFF COULD PROCEED AGAINST NOTE AND GUARANTY AFTER RELEASING MORTGAGE)/CIVIL PROCEDURE (AMENDING COMPLAINT, AFTER RELEASING MORTGAGE, PLAINTIFF COULD PROCEED AGAINST THE NOTE AND GUARANTEE BY AMENDING THE ORIGINAL FORECLOSURE COMPLAINT)

You might also like
SUPREME COURT SHOULD HAVE ACCEPTED PLAINTIFF’S LAW-OFFICE-FAILURE EXCUSE FOR LATE SUBMISSION OF PAPERS OPPOSING DFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).
IN THIS CASE INVOLVING A FATAL CAR ACCIDENT WHEN DEFENDANT WAS APPARENTLY “RACING” THE OTHER DRIVER, THE EVIDENCE PRESENTED TO THE GRAND JURY WAS LEGALLY SUFFICIENT TO SUPPORT THE MANSLAUGHTER SECOND DEGREE CHARGE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
SUPREME COURT DID NOT CONDUCT A HEARING OR FOLLOW THE CHILD SUPPORT STANDARDS ACT FORMULA FOR CHILD SUPPORT CALCULATIONS; IN ADDITION THE COURT DID NOT CONSIDER THE STRONG PUBLIC POLICY AGAINST RESTITUTION OR RECOUPMENT OF CHIILD SUPPORT ALREADY PAID; MATTER REMITTED (SECOND DEPT).
Defects in On-the-Record Waiver of Appeal Not Cured by Written Waiver
A CAUSE OF ACTION MAY BE DISMISSED PURSUANT TO CPLR 3211 (a) (4) BECAUSE IT SEEKS THE SAME RELIEF AS A PENDING ACTION INVOLVING THE SAME PARTIES (SECOND DEPT).
THE BANK’S PROOF THAT THE RPAPL 1304 NOTICE OF FORECLOSURE WAS MAILED TO THE DEFENDANTS WAS INSUFFICIENT; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH THE MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT.

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

SUA SPONTE DISMISSAL FOR LACK OF STANDING REVERSED, LACK OF STANDING DEFENSE... ATTORNEYS’ FEES NOT AVAILABLE TO INSURED WHO BRINGS AFFIRMATIVE ACTION...