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PLAINTIFF DID NOT PROVE AT TRIAL THAT HE HAD STANDING TO BRING THE FORECLOSURE ACTION, HE DID NOT PROVE PHYSICAL POSSESSION OF THE ORIGINAL NOTE AT THE TIME THE ACTION WAS BROUGHT AND DID NOT PROVE THE NOTE WAS INDORSED IN BLANK OR TO HIM, APPELLATE COURT CAN INDEPENDENTLY WEIGH THE EVIDENCE AFTER A NONJURY TRIAL (THIRD DEPT).

The Third Department, reversing County Court after a trial, determined plaintiff did not prove he had standing to bring the foreclosure action:

… [T]he complaint should have been dismissed for lack of standing. Because defendant raised the issue of standing as an affirmative defense in his answer, plaintiff had to prove his standing to maintain this foreclosure action in order to be entitled to relief… . To establish standing, plaintiff was required “to demonstrate that, at the time that the action was commenced, [he] was the holder or assignee of the mortgage and the holder or assignee of the underlying note”… . As the issue of standing was resolved following a nonjury trial, we will “independently review the probative weight of the evidence, together with the reasonable inferences that may be drawn therefrom, and grant the judgment warranted by the record” … . …

“Holder status is established where the plaintiff possesses a note that, on its face or by allonge, contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff”… . While there was testimony that plaintiff possessed the original note at the time of trial in 2015, there was no proof that he was in possession of the original note when he commenced this foreclosure action five years earlier. Even if he was, the note — which was payable to Trustees Capital — was neither indorsed in blank nor specially indorsed to him. Consequently, plaintiff’s physical possession of the note could not render him the lawful holder thereof for purposes of enforcing it … . McCormack v Maloney, 2018 NY Slip Op 02385, Third Dept 4-5-18

​FORECLOSURE (PLAINTIFF DID NOT PROVE AT TRIAL THAT HE HAD STANDING TO BRING THE FORECLOSURE ACTION, HE DID NOT PROVE PHYSICAL POSSESSION OF THE ORIGINAL NOTE AT THE TIME THE ACTION WAS BROUGHT AND DID NOT PROVE THE NOTE WAS INDORSED IN BLANK OR TO HIM, APPELLATE COURT CAN INDEPENDENTLY WEIGH THE EVIDENCE AFTER A NONJURY TRIAL (THIRD DEPT))/STANDING (FORECLOSURE, PLAINTIFF DID NOT PROVE AT TRIAL THAT HE HAD STANDING TO BRING THE FORECLOSURE ACTION, HE DID NOT PROVE PHYSICAL POSSESSION OF THE ORIGINAL NOTE AT THE TIME THE ACTION WAS BROUGHT AND DID NOT PROVE THE NOTE WAS INDORSED IN BLANK OR TO HIM, APPELLATE COURT CAN INDEPENDENTLY WEIGH THE EVIDENCE AFTER A NONJURY TRIAL (THIRD DEPT))/APPEALS (FORECLOSURE, (PLAINTIFF DID NOT PROVE AT TRIAL THAT HE HAD STANDING TO BRING THE FORECLOSURE ACTION, HE DID NOT PROVE PHYSICAL POSSESSION OF THE ORIGINAL NOTE AT THE TIME THE ACTION WAS BROUGHT AND DID NOT PROVE THE NOTE WAS INDORSED IN BLANK OR TO HIM, APPELLATE COURT CAN INDEPENDENTLY WEIGH THE EVIDENCE AFTER A NONJURY TRIAL (THIRD DEPT))

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HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure proceeding, determined the homeowner had waived the defense of lack of personal jurisdiction and therefore the judge erred by, sua sponte, dismissing the complaint on that ground:

The Supreme Court erred in sua sponte raising and considering the defense of lack of personal jurisdiction. The homeowner waived this defense by failing to move to dismiss the complaint on this ground within 60 days of serving his answer … . As the homeowner waived this defense, it was error for the court, sua sponte, to direct dismissal of the complaint on this basis … .

Since, in the order appealed from, the plaintiff’s motion, inter alia, for summary judgment on the complaint and for an order of reference was, in effect, denied as academic in light of the Supreme Court’s directing dismissal of the complaint, we remit the matter to the Supreme Court, Queens County, for a determination of the plaintiff’s motion on the merits … . Wells Fargo Bank, N.A. v Cajas, 2018 NY Slip Op 02159, Second Dept 3-28-18

FORECLOSURE (HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))/CIVIL PROCEDURE (DEFENSE OF LACK OF PERSONAL JURISDICTION, FORECLOSURE, HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))/JURISDICTION, LACK OF PERSONAL (JUDGES, FORECLOSURE, HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))/JUDGES (SUA SPONTE DISMISSAL, FORECLOSURE, HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))/SUA SPONTE (LACK OF PERSONAL JURISDICTION, FORECLOSURE, HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))

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PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT).

The Second Department determined plaintiff’s twice filing for bankruptcy tolled the statute of limitations for the foreclosure action, making the foreclosure action timely. Therefore, the bank’s motion to dismiss plaintiff’s Real Property Actions and Proceedings Law (RPAPL) 1501 action to cancel and discharge the mortgage was properly granted:

Section 362 of the 1978 Bankruptcy Code (11 USC) provides that the filing of a petition in bankruptcy “operates as a stay, applicable to all entities, of . . . the commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title” … . The filing of a petition for protection under the Bankruptcy Code imposes “an automatic stay of any mortgage foreclosure actions” … . CPLR 204(a) provides that “[w]here the commencement of an action has been stayed . . . by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced.” Pursuant to CPLR 204(a), the Bankruptcy Code’s automatic stay tolls the limitations period for foreclosure actions … .

Here, in support of its motion to dismiss pursuant to CPLR 3211(a)(7), U.S. Bank submitted copies of the plaintiff’s petitions filed in the Bankruptcy Court, together with copies of the orders dismissing the first bankruptcy proceeding and releasing the subject property from the bankruptcy estate in the second bankruptcy proceeding, thereby establishing that, pursuant to CPLR 204(a), the statute of limitations had been tolled for over 4½ years. Lubonty v U.S. Bank N.A., 2018 NY Slip Op 02153, Second Dept 3-28-18

FORECLOSURE (PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/BANKRUPTCY (FORECLOSURE, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, FORECLOSURE, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, BANKRUPTCY, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/CPLR 204 (FORECLOSURE, BANKRUPTCY, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, RPAPL 1501 ACTION TO CANCEL AND DISCHARGE MORTGAGE, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))

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ALTHOUGH THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION WAS TOLLED WHEN THE BANKRUPTCY PROCEEDINGS WERE ACTIVE, IT WAS NOT TOLLED WHEN A TEMPORARY RESTRAINING ORDER PROHIBITING SALE OF THE PROPERTY WAS IN EFFECT, FORECLOSURE ACTION WAS THEREFORE TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the statute of limitations for bringing a foreclosure action, although tolled when bankruptcy proceedings were active, was not tolled when a temporary restraining order prohibiting the sale of the property was in effect. Therefore the foreclosure action was time-barred:

Under CPLR 204(a), “[w]here the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced” … . The bankruptcy stay of 11 USC § 362(c) operates under CPLR 204(a) to stay the commencement, or continuation, of a foreclosure action … . Thus, the periods during which bankruptcy stays were in effect were not part of the time counted in the calculation of the running of the statute of limitations … . Contrary to the plaintiff’s contention, however, the time during which the temporary restraining order was in effect when the [borrowers] moved to dismiss the first foreclosure action did not toll the running of the statute of limitations. That order prevented the plaintiff from selling the property at auction, but only in the context of the first foreclosure action. The temporary restraining order did not prevent the plaintiff from discontinuing the first foreclosure action and commencing a new action… . Thus, the plaintiff was not entitled under CPLR 204(a) to have the time during which the temporary restraining order was in effect excluded from the statute of limitations, and the total time elapsed from the acceleration of the mortgage debt until the second foreclosure action was commenced exceeded six years, even when the periods attributable to the bankruptcy stays are excluded. U.S. Bank N.A. v Joseph, 2018 NY Slip Op 02155, Second Dept 3-28-18

FORECLOSURE (STATUTE OF LIMITATIONS, ALTHOUGH THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION WAS TOLLED WHEN THE BANKRUPTCY PROCEEDINGS WERE ACTIVE, IT WAS NOT TOLLED WHEN A TEMPORARY RESTRAINING ORDER PROHIBITING SALE OF THE PROPERTY WAS IN EFFECT, FORECLOSURE ACTION WAS THEREFORE TIME-BARRED (SECOND DEPT))/BANKRUPTCY (FORECLOSURE, STATUTE OF LIMITATIONS, ALTHOUGH THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION WAS TOLLED WHEN THE BANKRUPTCY PROCEEDINGS WERE ACTIVE, IT WAS NOT TOLLED WHEN A TEMPORARY RESTRAINING ORDER PROHIBITING SALE OF THE PROPERTY WAS IN EFFECT, FORECLOSURE ACTION WAS THEREFORE TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, FORECLOSURE, ALTHOUGH THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION WAS TOLLED WHEN THE BANKRUPTCY PROCEEDINGS WERE ACTIVE, IT WAS NOT TOLLED WHEN A TEMPORARY RESTRAINING ORDER PROHIBITING SALE OF THE PROPERTY WAS IN EFFECT, FORECLOSURE ACTION WAS THEREFORE TIME-BARRED (SECOND DEPT))/CPLR 204 (STATUTE OF LIMITATIONS, FORECLOSURE, ALTHOUGH THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION WAS TOLLED WHEN THE BANKRUPTCY PROCEEDINGS WERE ACTIVE, IT WAS NOT TOLLED WHEN A TEMPORARY RESTRAINING ORDER PROHIBITING SALE OF THE PROPERTY WAS IN EFFECT, FORECLOSURE ACTION WAS THEREFORE TIME-BARRED (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, ALTHOUGH THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION WAS TOLLED WHEN THE BANKRUPTCY PROCEEDINGS WERE ACTIVE, IT WAS NOT TOLLED WHEN A TEMPORARY RESTRAINING ORDER PROHIBITING SALE OF THE PROPERTY WAS IN EFFECT, FORECLOSURE ACTION WAS THEREFORE TIME-BARRED (SECOND DEPT))

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MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a partial dissent, determined plaintiff mortgage company should have been allowed to amend its complaint to seek equitable subrogation in this foreclosure action. Defendants husband (Feller) and wife had a mortgage on the subject property. Plaintiff’s predecessor in interest subsequently provided a mortgage loan to defendant husband alone and the proceeds were used to pay off the first mortgage. Plaintiff’s predecessor then procured a judgment in foreclosure, but only with respect to defendant husband’s interest in the property. Plaintiff  sought to amend its complaint alleging it was entitled to the wife’s interest in the property (equitable subrogation). The court further found that defendant wife did not ratify the execution of the husband’s mortgage and explained the criteria for ratification:

As we recently clarified, the party seeking leave to amend a pleading “need not establish the merits of the proposed amendment” … . Rather, the appropriate standard to be applied on a motion for leave to amend a pleading is that, “‘in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . …

Ratification … is the express or implied “adoption of the acts of another by one for whom the other assumes to be acting, but without authority” … . …[P]laintiff has not alleged any unauthorized act on the part of Feller. It is undisputed that Feller and defendant held the property at issue as tenants by the entirety, and “there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” … .

Here, plaintiff’s predecessor in interest, Countrywide, provided funds through a second mortgage on the subject property to pay off a first mortgage securing a loan that both defendant and Feller were obligated to pay. Defendant would therefore be unjustly enriched if the doctrine of equitable subrogation were not applied, as denial of this equitable remedy “would provide a windfall to [defendant] by allowing [her] to have [her] original mortgage debt extinguished while at the same time maintain a right to the subject property that is superior to the mortgagee that furnished the funds that extinguished the first mortgage” … . Green Tree Servicing, LLC v Feller, 2018 NY Slip Op 01973, Third Dept 3-22-18

CIVIL PROCEDURE (FORECLOSURE, MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))/FORECLOSURE (MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))/RATIFICATION (FORECLOSURE, MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))/EQUITABLE SUBROGATION (FORECLOSURE,  MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))/MORTGAGES (FORECLOSURE, MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Nimkoff) was entitled to a hearing on whether plaintiff bank (Hudson City Savings Bank) made a good faith effort to resolve the foreclosure action pursuant to CPLR 3408 (f):

… Nimkoff submitted … his own affidavit in which he averred that the plaintiff refused to negotiate with him for the stated reason that another entity, Hudson City Savings Bank (hereinafter Hudson City), was the holder of the mortgage and did not allow loan modifications. In opposition, the plaintiff contended that its counsel properly appeared at the two foreclosure settlement conferences and advised the court that Hudson City does not participate in the home affordable modification program. The plaintiff submitted … the master mortgage loan purchase and servicing agreement (hereinafter PSA) between the plaintiff and Hudson City to establish that the plaintiff was the servicer of the subject mortgage and Hudson City was the purchaser. However, the PSA also authorized the plaintiff to modify the terms of the subject mortgage loan with Hudson City’s consent. In any event, the statute requires the parties to negotiate in good faith to reach a mutually agreeable resolution. There is no evidence in the record that the plaintiff attempted to gain Hudson City’s consent to offer a loan modification or offered Nimkoff another nonretention solution, such as a deed in lieu of foreclosure. In fact, there is no evidence in the record that any effort was made to reach a resolution at the two foreclosure settlement conferences. Citimortgage, Inc. v Nimkoff, 2018 NY Slip Op 01900, Second Dept 3-21-18

FORECLOSURE (SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/SETTLEMENT CONFERENCE (FORECLOSURE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/CPLR 3408 (f) (FORECLOSURE, SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))

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ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (Jackson’s) motion to toll the accrual of interest during the four years between the filing of the first foreclosure action, which was erroneously dismissed, and the second foreclosure action should have been granted. The court further found that defendant’s motion to amend the answer to assert the lack of standing defense should have been granted:

Although the initial October 2010 RJI may have been rejected erroneously, the plaintiff fails to explain the ensuing four-year delay between the initial October 2010 filing and the subsequent filing on November 6, 2014. Under the unusual circumstances of this case, since Jackson was prejudiced by this unexplained delay, during which time interest had been accruing, the interest on the loan should have been tolled from December 22, 2010 (that is, 60 days after the alleged initial October 2010 RJI was filed, the time period during which a settlement conference would be scheduled), through the date that the plaintiff filed the subsequent RJI on November 6, 2014 … . …

“Leave to amend a pleading shall be freely given,’ provided that the amendment is not palpably insufficient as a matter of law, does not prejudice or surprise the opposing party, and is not patently devoid of merit” … . “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” … . Here, Jackson sought to amend his answer after he was served with the November 2014 RJI to which the plaintiff had attached a copy of the subject note, executed by him in favor of Countrywide Bank, FSB, and which had not been endorsed to the plaintiff. Since Jackson’s proposed amendment to include the defense of lack of standing did not result in any prejudice to the plaintiff and was not palpably insufficient or patently devoid of merit, the Supreme Court improvidently exercised its discretion in denying that branch of Jackson’s motion which was for leave to amend his answer to assert the defense of lack of standing … . BAC Home Loans Servicing, L.P. v Jackson, 2018 NY Slip Op 01896, Second Dept 3-21-18

FORECLOSURE (ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))/INTEREST (FORECLOSURE,  ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))/CIVIL PROCEDURE (AMEND ANSWER, FORECLOSURE, ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))

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FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s foreclosure action was time-barred. Although the action would have been timely against the estate of defendant’s (Kess’s) wife because of the 18-month post-death statute of limitations toll in CPLR 210 (b), plaintiff did not demonstrate Kess was representing his wife’s estate:

…Kess demonstrated that the six-year statute of limitations (see CPLR 213[4]) began to run on May 6, 2008, when the plaintiff accelerated the mortgage debt and commenced the 2008 foreclosure action … . Since the plaintiff did not commence the instant foreclosure action until more than six years later, Kess sustained his initial burden of demonstrating, prima facie, that this action was untimely … . …

CPLR 210(b) provides that “[t]he period of eighteen months after the death . . . of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his [or her] executor or administrator.” The statute plainly is limited in scope to the executor or administrator of the decedent’s estate and does not extend to other defendants in the same action … . Consequently, CPLR 210(b) could not extend the statute of limitations period as to Kess individually. Furthermore, the plaintiff failed to establish that Kess was the administrator or executor of his deceased wife’s estate, a point which Kess denied in reply to the plaintiff’s opposition. U.S. Bank, N.A. v Kess, 2018 NY Slip Op 01498, Second Dept 3-7-18

FORECLOSURE (FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, TRUSTS AND ESTATES, FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))/TRUSTS AND ESTATES (FORECLOSURE, STATUTE OF LIMITATIONS, FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))/STATUTE OF LIMITATIONS (TRUSTS AND ESTATES, ORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))/CPLR 210 (b)  (FORECLOSURE, STATUTE OF LIMITATIONS, TRUSTS AND ESTATES, FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))

COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank’s motion for summary judgment should not have been granted because the papers did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304:

…[T]he complaint should be dismissed as against defendant, without prejudice, because plaintiff failed to prove that it mailed the notices required by Real Estate Property Actions and Proceedings Law § 1304 … . The affidavit by Diondra Doublin, submitted by plaintiff, failed to demonstrate a familiarity with plaintiff’s mailing practices and procedures … . The fact that some of the RPAPL 1304 notices bear a certified mail number is also insufficient … . We further note that defendant submitted an affidavit denying that he had received any RPAPL 1304 notice … .

Plaintiff’s motion should be denied for the additional reason that the affidavit by defendant’s wife creates an issue of fact as to whether plaintiff delivered the notice required by RPAPL 1303 with the summons and complaint … . Nationstar Mtge., LLC v Cogen, 2018 NY Slip Op 01413, First Dept 3-1-18

FORECLOSURE (COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT).

The Second Department determined plaintiff bank’s (OneWest’s) motion for summary judgment should have been denied because standing was not demonstrated with evidence meeting the business records hearsay exception requirements. The Second Department criticized Supreme Court for doing its own Internet research and making a sua sponte finding that OneWest had standing:

In support of its motion, OneWest submitted the affidavit of Jillian Thrasher, an employee of its loan servicer, who averred that OneWest was the holder of the note, which is endorsed in blank, and assignee of the mortgage at the time the action was commenced. However, OneWest failed to demonstrate the admissibility of the records that Thrasher relied upon under the business records exception to the hearsay rule (see CPLR 4518[a]), since she did not attest that she was personally familiar with OneWest’s record-keeping practices and procedures … . Insofar as the Supreme Court reached its determination that OneWest had standing by, sua sponte, “independently tak[ing] judicial notice of the FDIC website,” this Court has repeatedly cautioned against such independent Internet investigations, especially when conducted without providing notice or an opportunity for the parties to be heard … . OneWest Bank, FSB v Berino, 2018 NY Slip Op 01318, Second Dept 2-28-18

FORECLOSURE (EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))/EVIDENCE (FORECLOSURE, EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))/CPLR 4518 (EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))/SUA SPONTE (INTERNET RESEARCH, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))/INTERNET RESEARCH BY COURT (SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))

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