Archives: Foreclosure Practices

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Supreme Court Declares CDC Eviction Moratorium Unconstitutional

Late Thursday evening, the Supreme Court of the United States issued an opinion to reinstate a court order blocking the Centers for Disease Control and Prevention’s (“CDC”) nationwide moratorium on residential evictions. In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act, which, in part, imposed a 120-day eviction moratorium on properties … Continue Reading

CPLR 3216 Dismissal Demands Compliance from All – Courts Included

As vaccination rates increase, holds on foreclosure actions expire, and the courts slowly return to addressing their largely frozen foreclosure dockets, we can expect some familiar concerns to reappear. One common concern is the threat of dismissal pursuant to CPLR 3216 for unreasonable neglect to proceed. Given the severe disruption to mortgage litigation caused by … Continue Reading

To Forgive or Not to Forgive a CPLR 3215(c) Violation in a Residential Mortgage Foreclosure

CPLR 3215(c) requires a plaintiff to take proceedings for entry of judgment within one year of default or face dismissal of the action as abandoned, except where sufficient cause is shown why the complaint should not be dismissed.  The purpose of this provision is to prevent a plaintiff from taking advantage of a defendant’s default … Continue Reading

The Appellate Courts Look at the Waiver of Standing Defenses post-RPAPL § 1302-a

Prior to the enactment of Real Property Actions and Proceeding Law (“RPAPL”) § 1302-a, defendants waived their affirmative defense of standing in a residential foreclosure action by failing to raise that defense in an answer or a pre-answer motion to dismiss.  See, e.g., JP Morgan Chase Bank, Nat’l Ass’n v. Butler, 129 A.D.3d 777, 780 … Continue Reading

Recent Developments in Demonstrating Standing to Foreclose in New York as the Court of Appeals Weighs Back In

In JPMorgan Chase Bank, N.A. v Caliguri, 36 N.Y.3d 953 (2020), the Court of Appeals recently clarified how a lender establishes standing in a foreclosure action.  Prior to this recent pronouncement, the standard set by that Court had been that a plaintiff evidences standing to foreclose by demonstrating that it possessed the original note agreement … Continue Reading

New York Appellate Divisions Reach Different Conclusions as to Whether Actions on the Note May be Maintained once the Statute of Limitations Bars Enforcement of the Mortgage, Leaving the Issue Ripe for the Court of Appeals

The Appellate Division, Third Department recently issued a decision in Citimortgage, Inc. v Ramirez, ___AD3d___, 2020 NY Slip Op 07970 (2020) (“Ramirez“), concerning the plaintiff lender’s appeal from the Supreme Court’s dismissal of an action for recovery on a note, where plaintiff’s two prior foreclosures had already been dismissed. In its decision reversing dismissal, the … Continue Reading

RPAPL Arguments May be Waived: Case of Appellate First Impression

In a case of appellate first impression in New York, the Appellate Division, Second Department, held that a mortgagor cannot make a Real Property Actions and Proceedings Law (“RPAPL”) 1304 argument in opposition to a motion for Judgment of Foreclosure and Sale – even if that was pled as a defense in the mortgagor’s Answer … Continue Reading

How COVID-19 is Impacting Mortgage Lenders

As the sheer impact of COVID-19 continues to unfold, federal agencies are implementing policies across the country in an effort to lessen the financial burden on Americans.  On March 18, 2020, the U.S. Department of Housing and Urban Development (“HUD”) authorized the Federal Housing Administration to place an immediate 60-day suspension on all evictions and … Continue Reading

The Often Overlooked Federal Protections to Tenants in Foreclosure Actions

For institutional lenders, the filing of any foreclosure action requires careful navigation and compliance with various state and federal laws.  Notice to the mortgagor, for instance, is a prerequisite to any foreclosure; however, what if the property is subject to a residential lease? What obligation does a mortgagee then have to a third-party tenant?  For … Continue Reading

Appellate Division Rejects MacPherson Mortgage Acceleration Argument in Case of First Impression

In a case of appellate first impression in New York, the Appellate Division, Second Department held that a mortgage is accelerated upon a lender’s election to do so, notwithstanding an optional reinstatement clause in a mortgage.  In the Dieudonne matter,[1] the Second Department rejected the “MacPherson Argument,” first pronounced by the Supreme Court, Suffolk County[2] … Continue Reading
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