You are here: / Foreclosure
, ,

COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Citimortgage’s) motion to dismiss the plaintiff’s action to cancel and discharge a mortgage should not have been granted. The bank started a foreclosure action in 2009 and the statute of limitations expired on March 17, 2015. On March 13, 2015, the bank sent a letter to plaintiff purporting to de-accelerate the loan and re-institute the loan as an installment loan. The Second Department determined the motion to dismiss should not have been converted to a motion for summary judgment and the March 13, 2015, letter did not constitute documentary evidence sufficient to dismiss the complaint. There was no proof when the letter was mailed and it could have arrived after the statute of limitations expired:

Here, the Supreme Court should not have converted Citimortgage’s motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing “adequate notice to the parties” (CPLR 3211[c]…). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties … . …

“In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence,’ it must be unambiguous, authentic, and undeniable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case. However, neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … . Furthermore, “[a] lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action”… . Soroush v Citimortgage, Inc., 2018 NY Slip Op 03724, Second Dept 5-23-18

​FORECLOSURE (COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/CIVIL PROCEDURE (DISMISS, MOTION TO, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/DISMISS, MOTION TO (CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/DOCUMENTARY EVIDENCE (DISMISS, MOTION TO, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/CPLR 3211 (COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))

,

FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure complaint should not have been dismissed on the ground that the bank had not taken proceedings for the entry of a default judgment within a year of defendants’ default. It was enough that the bank took preliminary steps toward obtaining a default judgment within the year:

CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” “It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)” … . “Rather, it is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference’ to establish that it initiated proceedings for entry of a judgment within one year of the default’ for the purposes of satisfying CPLR 3215(c)” … . Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference … within one year of the defendants’ default and, thus, did not abandon the action … . Deutsche Bank Natl. Trust Co. v Delisser, 2018 NY Slip Op 03504, Second Dept 5-16-18

​FORECLOSURE (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/CIVIL PROCEDURE (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/CPLR 3315 (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/DEFAULT (CIVIL PROCEDURE, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))

, ,

COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of a defendant in this foreclosure action precluded the court from hearing and determining plaintiff’s motion for summary judgment, even with respect to the other defendants:

As a general matter, “the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for that decedent pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution will generally be deemed a nullity”… .

Here, the defendant Michael Costello died before the plaintiff’s motion was made and before the orders appealed from were issued. Since a substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff’s motion, even to the extent that the plaintiff sought relief against the other defendants … . Furthermore, although this Court has recognized, under certain limited circumstances, that “where a party’s demise does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution” … , those circumstances are not present here … . American Airlines Fed. Credit Union v Costello, 2018 NY Slip Op 03335, Second Dept 5-9-18

​CIVIL PROCEDURE (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/FORECLOSURE (DEATH OF A PARTY, CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/CPLR 1015  (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/DEATH OF A PARTY  (CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/SUBSTITUTION (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))

ALTHOUGH THE MONTHLY MORTGAGE PAYMENTS STOPPED IN 2008, THE DEBT WAS NEVER ACCELERATED UNTIL THE INSTANT FORECLOSURE ACTION WAS BROUGHT IN 2015, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the foreclosure action was not time barred. The mortgage payments stopped in 2008. But the debt was never accelerated until the foreclosure action was commenced in 2015:

Where, as here, a loan secured by a mortgage is payable in installments, separate causes of action accrue for each unpaid installment, and the statute of limitations begins to run on the date that each installment becomes due … . Thus, unless the entire debt had been accelerated by the mortgage holder, on the date of a default the statute of limitations begins to run only for the installment payment that became due on that date … .

Here, defendants’ own submissions in support of the motion establish that the mortgage is an installment mortgage, the installment payments are due monthly until January 1, 2035, and defendants defaulted on the payment that was due September 1, 2008. Further, defendants failed to establish that plaintiff accelerated the debt by demanding payment of the entire loan or by commencing a prior foreclosure action. Thus, the action was timely commenced inasmuch as the statute of limitations did not begin to run on the entire debt until the instant action was commenced on February 20, 2015. Wilmington Sav. Fund Socy., FSB v Unknown Heirs at Law of Danny Higdon, 2018 NY Slip Op 03274, Fourth Dept 5-4-18

​FORECLOSURE (ALTHOUGH THE MONTHLY MORTGAGE PAYMENTS STOPPED IN 2008, THE DEBT WAS NEVER ACCELERATED UNTIL THE INSTANT FORECLOSURE ACTION WAS BROUGHT IN 2015, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT))/STATUTE OF LIMITATIONS, FORECLOSURE, (ALTHOUGH THE MONTHLY MORTGAGE PAYMENTS STOPPED IN 2008, THE DEBT WAS NEVER ACCELERATED UNTIL THE INSTANT FORECLOSURE ACTION WAS BROUGHT IN 2015, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT))

BANK WHICH PURPORTEDLY ACCELERATED THE DEBT DID NOT HAVE STANDING TO DO SO, PLAINTIFF BANK ENTITLED ONLY TO THE UNPAID INSTALLMENTS WHICH ACCRUED DURING THE SIX YEARS PRIOR TO COMMENCING THE ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the bank which purportedly accelerated the debt was not a holder or assignee of the mortgage and did not own or hold the note. Therefore the debt was not accelerated. Plaintiff bank was entitled to the unpaid installments which accrued during the 6-year (and 90 day) period before the action was commenced:

Where, as here, a mortgage is payable in installments, separate causes of action accrue for each unpaid installment, and the six-year statute of limitations begins to run on the date that each installment becomes due… . If, however, the mortgage holder accelerates the entire debt by a demand, the six-year statute of limitations begins to run on the entire debt… .

Here, defendants’ own submissions in support of the motion establish that, although another entity purported to accelerate defendants’ entire debt in 2010 and 2012, that entity was not the holder or assignee of the mortgage and did not hold or own the note. Thus, the entity’s purported attempts to accelerate the entire debt were a nullity, and the six-year statute of limitations did not begin to run on the entire debt … . Although this mortgage foreclosure action therefore is not time-barred, we note that, “in the event that the plaintiff prevails in this action, its recovery is limited to only those unpaid installments which accrued within the six-year [and 90-day] period immediately preceding its commencement of this action” … . Wilmington Sav. Fund Socy., FSB v Gustafson, 2018 NY Slip Op 02954, Fourth Dept 4-27-18

​FORECLOSURE (BANK WHICH PURPORTEDLY ACCELERATED THE DEBT DID NOT HAVE STANDING TO DO SO, PLAINTIFF BANK ENTITLED ONLY TO THE UNPAID INSTALLMENTS WHICH ACCRUED DURING THE SIX YEARS PRIOR TO COMMENCING THE ACTION (FOURTH DEPT))

, ,

INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted because the proof of compliance with the Real Property Actions and Proceedings Law (RPAPL) 90 day notice mailing requirements was insufficient:

Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure … .

Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or other proof of mailing by the post office establishing that it properly served [defendant] pursuant to RPAPL 1304. The unsubstantiated and conclusory statement of a vice president of the plaintiff that a 90-day pre-foreclosure notice “was forwarded by regular and certified mail” to [defendant] “in full compliance with all requirements of RPAPL § 1304” was insufficient to establish that the notice was actually mailed to [defendant] by first-class and certified mail … . Wells Fargo Bank, NA v Mandrin, 2018 NY Slip Op 02826, Second Dept 4-25-18

​FORECLOSURE (INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, 90 DAY NOTICE,  INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

, , ,

BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to change the caption in this foreclosure action to substitute and new bank plaintiff (FNMA) and eliminate one of the defendants who had died should not have been granted. The motion papers did not demonstrate with admissible evidence that the note had been assigned to the new plaintiff and did not take any of the required steps to remove the deceased defendant (George Bredehorn) from the action:

Although the plaintiff submitted evidence that the mortgage was assigned to FNMA, there was no evidence in admissible form of an assignment of the note or a transfer of possession of the note to FNMA. The only evidence offered by the plaintiff that the note had in fact been transferred to FNMA was the statement in the plaintiff’s attorney’s affirmation that “based on telephonic conversations,” the attorney had been advised that FNMA was the holder of the note as of February 1, 2014. This statement is inadmissible hearsay … .

Further, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was to omit George Bredehorn from the caption. The plaintiff did not establish that George Bredehorn died intestate, move to substitute a representative for George Bredehorn’s estate as a defendant, move to discontinue the action insofar as asserted against him, or represent that it would not seek a deficiency judgment against his estate. In light of the plaintiff’s failure to take any one of those actions, the action against George Bredehorn was not extinguished … . Citimortgage, Inc. v Bredehorn, 2018 NY Slip Op 02595, Second Dept 4-18-18

​FORECLOSURE (BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/TRUSTS AND ESTATES (FORECLOSURE, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/EVIDENCE (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/HEARSAY (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/CPLR 1015  (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))

,

MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined there was a question of fact about the intent of the parties with respect to the property to which the plaintiff’s mortgage applied. The mortgage indicated the subject property by lot number and by metes and bounds. The metes and bounds description encompassed two lots:

Real Property Law § 240(3) provides that an instrument “creating, transferring, assigning or surrendering an estate or interest in real property” must be construed “according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.” “Where the language used in [a mortgage] is ambiguous such that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances”… .

Contrary to the plaintiff’s contention, there is no rule that it is the metes and bounds description that determines what property is encumbered by any mortgage and not the street address or tax lot numbers. Rather, where, as here, there is a conflict between the metes and bounds description and the street address and/or tax lot numbers given in the mortgage, there is an ambiguity that requires consideration of parol evidence … Here, the … mortgage was “ambiguous on its face,” because “it refer[red] to one lot, but contain[ed] a metes and bounds description” for two lots … . JPMorgan Chase Bank, N.A. v Zhan Hua Cao, 2018 NY Slip Op 02603, Second Dept 4-18-18

​FORECLOSURE (MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT))/MORTGAGES (MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT))/REAL PROPERTY LAW (MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT))/METES AND BOUNDS  (MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT))

,

QUESTION OF FACT WHETHER PLAINTIFF BANK HAD POSSESSION OF THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED, THE DOCUMENTARY EVIDENCE SUBMITTED BY PLAINTIFF CONTRADICTED THE DATE OF POSSESSION DESCRIBED IN PLAINTIFF’S AFFIDAVIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether plaintiff had standing to bring the foreclosure action. i.e., whether it had possession of the note at the time the action was brought:

Here, the plaintiff produced the mortgage, the unpaid note, and evidence of [defendant’s] default. However, the plaintiff failed, prima facie, to establish its standing. Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action… . The plaintiff attempted to establish its standing through the affidavit of Chelsie Hall, a document execution specialist … . Based on her review of the plaintiff’s business records, Hall averred, in relevant part, that “[the] [p]laintiff acquired the original [n]ote on July 25, 2005.” However, the additional documentary evidence submitted by the plaintiff in support of its motion for summary judgment showed that [defendant] continued to deal with the originating lender … until at least 2012.  Green Tree Servicing, LLC v Vitaliti, 2018 NY Slip Op 02601, Second Dept 4-18-18

​FORECLOSURE (QUESTION OF FACT WHETHER PLAINTIFF BANK HAD POSSESSION OF THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED, THE DOCUMENTARY EVIDENCE SUBMITTED BY PLAINTIFF CONTRADICTED THE DATE OF POSSESSION DESCRIBED IN PLAINTIFF’S AFFIDAVIT (SECOND DEPT))/STANDING (FORECLOSURE, QUESTION OF FACT WHETHER PLAINTIFF BANK HAD POSSESSION OF THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED, THE DOCUMENTARY EVIDENCE SUBMITTED BY PLAINTIFF CONTRADICTED THE DATE OF POSSESSION DESCRIBED IN PLAINTIFF’S AFFIDAVIT (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, QUESTION OF FACT WHETHER PLAINTIFF BANK HAD POSSESSION OF THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED, THE DOCUMENTARY EVIDENCE SUBMITTED BY PLAINTIFF CONTRADICTED THE DATE OF POSSESSION DESCRIBED IN PLAINTIFF’S AFFIDAVIT (SECOND DEPT))

,

FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the failure to cite the CPLR provision upon which the cross motion to vacate the default was based was not fatal to the motion because the basis was clear from the motion papers, (2) there was a question of fact whether defendant was served with the foreclosure summons and complaint requiring a traverse hearing, and (3) because defendant did not live at the subject premises (he lived next door), the CPLR 3215(G)(3) notice requirement did not apply:

Plaintiff argues that the subject action is not a residential mortgage foreclosure action because such actions involve foreclosure of a “home loan,” which according to RPAPL (Real Property Actions and Proceedings Law) 1304(6)(iii) is any loan secured by property “which is or will be occupied by the borrower as the borrower’s principal dwelling.” It is undisputed that defendant does not reside at the mortgaged property. …  Therefore, plaintiff asserts the action is not subject to the additional mailing requirement of CPLR 3215.

CPLR 3215(g)(3) provides that when a default judgment “based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation,” that person is entitled to additional notice of the action, which is provided by mailing the summons to his or her place of residence. The provision was enacted out of concern for “unsophisticated homeowners” who “do not receive sufficient notice that they are about to lose their homes through foreclosure” … . As defendant does not reside at the mortgaged property, this foreclosure proceeding does not place his home at risk. Accordingly, we find that plaintiff was not required to serve a 3215(g)(3) notice on defendant. Bank of Am., N.A. v Diaz, 2018 NY Slip Op 02421, First Dept 4-10-18

​FORECLOSURE (FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/CIVIL PROCEDURE (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/CPLR 3215(g)(3) (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/TRAVERSE HEARING (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST 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