You are here: / / IN THIS FORECLOSURE DEFICIENCY-JUDGMENT CASE, THE FAIR VALUE OF THE PROPERTY...
,

IN THIS FORECLOSURE DEFICIENCY-JUDGMENT CASE, THE FAIR VALUE OF THE PROPERTY WAS CONSIDERABLY HIGHER THAN THE LIQUIDATION VALUE USED BY THE COURT TO CALCULATE THE DEFICIENCY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the fair market value of the property in this foreclosure-deficiency-judgment proceeding was considerably greater than the liquidation valued used by the court:

“RPAPL 1371(2) permits the mortgagee in a mortgage foreclosure action to recover a deficiency judgment for the difference between the amount of indebtedness on the mortgage and either the auction price at the foreclosure sale or the fair market value of the property, whichever is higher” … . “It is the lender who bears the initial burden of demonstrating, prima facie, the property’s fair market value as of the date of the auction sale” … . “When a lender moves to secure a deficiency judgment against a borrower, ‘the court . . . 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 [o]n at auction or such nearest earlier date as there shall have been any market value thereof'” … .

Here, the record does not support a finding that the estimated liquidation value of $620,000 constituted the fair and reasonable market value of the property at the time of the foreclosure sale … . Rather, the record supports a determination that the higher estimated value of $1,060,000 presented by the plaintiff’s appraiser constituted the fair and reasonable market value of the property at the time of the foreclosure sale. Rhinebeck Bank v WA 319 Main, LLC, 2022 NY Slip Op 06507, Second Dept 11-16-22

Practice Point: Here the court should have used plaintiff’s appraiser’s determination of the fair market value of the foreclosed property to calculate the amount of the deficiency judgment pursuant to RPAPL 1371(2). The court used a much lower “liquidation value.”

 

You might also like
MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED, ANALYTICAL CRITERIA EXPLAINED.
THE NOTICE OF CLAIM WAS SERVED ONLY FIVE DAYS LATE WHICH WAS DEEMED TIMELY NOTICE OF THE NATURE OF THE ACTION AND A SHOWING OF THE ABSENCE OF PREJUDICE; THE CITY DID NOT AFFIRMATIVELY DEMONSTRATE PREJUDICE; THE ABSENCE OF AN ADEQUATE EXCUSE WAS NOT FATAL; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE DEFENSES OF LACK OF STANDING AND LACK OF PERSONAL JURISDICTION IN THE ANSWER, THE DEFENSES WERE NOT WAIVED AND THE MOTION TO AMEND THE ANSWER SHOULD HAVE BEEN GRANTED; EVEN THOUGH THE STATUTE PROVIDING THAT THE LACK OF STANDING DEFENSE WAS NOT WAIVED WAS NOT ENACTED AT THE TIME THE MOTION WAS DECIDED, THE APPELLATE COURT CAN APPLY THE LAW AS IT EXISTS AT THE TIME OF THE APPELLATE DECISION (SECOND DEPT).
Father’s New York Custody Petition Not Preempted by Dominican Republic Court’s Denial of Father’s Application for Return of the Child
Even Records Demonstrated to Be Material and Necessary to the Prosecution or Defense of an Action Are Not Discoverable If Privileged and the Privilege Is Not Waived
THE POLICE WERE JUSTIFIED IN STOPPING A BICYCLIST WHO WAS WEAVING AND HOLDING A BULKY OBJECT IN HIS WAISTBAND; DEFENDANT’S MOTION TO SUPPRESS PROPERLY DENIED (SECOND DEPT).
THE MOTION FOR SUMMARY JUDGMENT WAS PREMATURE (MADE BEFORE ISSUE WAS JOINED) AND SHOULD NOT HAVE BEEN GRANTED; ALTHOUGH NOT PRESERVED THE ISSUE COULD BE HEARD ON APPEAL BECAUSE IT PRESENTED A QUESTION OF LAW THAT COULD NOT HAVE BEEN AVOIDED IF RAISED (SECOND DEPT).
ONLY THE HUSBAND TOOK OUT A MORTGAGE AND DEFENDANTS DENIED THE ALLEGATION IN THE COMPLAINT THAT THE WIFE’S INTEREST WAS SUBJECT TO AN EQUITABLE MORTGAGE; THEREFORE THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED; THE COURT NOTED THAT “NEITHER ADMITTED NOR DENIED” IN AN ANSWER TO A COMPLAINT IS DEEMED AN ADMISSION (SECOND DEPT).

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

THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE AN OFFENSE CHARGED IN THE... HERE THE FAILURE TO OPPOSE THE MOTION FOR SUMMARY JUDGMENT WAS DUE TO NEGLECT...