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RPAPL 1301(3) PROHIBITS MORE THAN ONE FORECLOSURE AT A TIME; THE VIOLATION OF THAT STATUTE HERE WAS A MERE IRREGULARITY WHICH SHOULD HAVE BEEN DISREGARDED; THE PRIOR ACTION WAS DISMISSED AFTER THE INSTANT ACTION WAS COMMENCED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the fact that RPAPL 1301(3), which prohibits more than one foreclosure at a time, was technically violated did not warrant dismissing the second action:

Here, the plaintiff failed to seek leave of court to commence this action while the 2010 action was still pending. However, the 2010 action had previously been marked disposed, and no further action occurred in the 2010 action until the administrative dismissal on April 9, 2018. Additionally, by the time the defendants cross-moved in this action for summary judgment dismissing the complaint insofar as asserted against them, the 2010 action had already been dismissed for nearly six months. Thus, the defendants were not prejudiced by having to defend against more than one action, and the plaintiff’s failure to strictly comply with RPAPL 1301(3) should have been disregarded as a mere irregularity … . HSBC Bank USA, N.A. v Kading, 2022 NY Slip Op 02255, Second Dept 4-6-22

Practice Point: Although RPAPL 1301(3) prohibits more than one foreclosure action at a time, if there is no prejudice to the borrowers a violation of that statute will be disregarded as a mere irregularity. Here the inactive first action was dismissed before the borrowers moved for summary judgment in the second.

 

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