A Foreclosure Proceeding In the Surrogate’s Court

January 29, 2013 By Elliot S. Schlissel

Let’s say your father, mother, a friend or relative leaves you their home either through a will or in an intestate proceeding (without a will). However, due to circumstances beyond your control, the mortgage payments were either not paid by the decedent in a timely manner or go unpaid during the pendency of the estate matter. Can the Surrogate’s Court intervene in a foreclosure proceeding?

In the case of In re Johanneson, NYLJ, September 4th, 2012 on page 26 (Surrogate’s Court, Richmond County), the issue of jurisdiction by the Surrogate’s Court in a foreclosure proceeding was dealt with. In this case, the administratrix of a decedent’s estate brought an application to transfer a pending foreclosure proceeding from a Supreme Court part to the Surrogate’s Court.

The attorneys for the financial institution opposed the transfer of the case to the Surrogate’s Court. They took the position the Surrogate’s Court did not have the appropriate subject matter jurisdiction.

The Surrogate’s Court in this case took the position pursuant to the New York State Constitution and the Surrogate’s Court Procedure Act they did have the appropriate subject matter jurisdiction to handle with a foreclosure proceeding which impacted on the decedent’s estate.

Unfortunately, even though the court claimed they had jurisdiction they declined to exercise their jurisdiction. The Surrogate’s Court felt the Supreme Court which handles foreclosure proceedings on a regular basis, would be better able to deal with the issues which might arise in the context of a routine foreclosure proceeding.

About the Author

Elliot S. Schlissel, Esq. is the former President of the Commercial Lawyers Conference of New York. For more than two decades he has been helping families fight foreclosure proceedings, deal with fraudulent mortgages and stop families from losing their homes.