Case Dismissed: Bank Didn’t Provide 90 Day Pre Foreclosure Notice

Person holding an orb with a home inside

A foreclosure legal action was brought by M&T Bank. Dr. Colleen Farrell submitted an answer to the foreclosure lawsuit. In it she claimed she had not been served with the preliminary notice the bank was putting the property into foreclosure required under New York Real Property Actions and Proceedings Law section 1304.

Motion to Dismiss Lawsuit

The bank made a motion for summary judgement and Dr. Farrell opposed the motion and moved to dismiss the bank’s complaint for failure to properly serve a 90 day notice prior to initiating the foreclosure lawsuit. In the application, Farrell claimed the service on his receptionist of the 90 day notice was invalid. He took the position she was not authorized to accept the service of this document. M&T Bank took the position Dr. Farrell was properly served. They claimed it was irrelevant as to whether his receptionist was authorized to accept service. In addition the bank claimed Farrell wasn’t even entitled to a 90 day notice under Real Property Actions and Proceeding Law section 1304. They took this position because the doctors office was not his principal place of residence. The court took into consideration that while Dr. Farrell claimed his receptionist was not authorized to accept service, she did not deny that she had been served. The court ruled whether or not she had authority to accept service was irrelevant since she had been served.

90 Day Pre Foreclosure Notice was Required

NY Foreclosure Defense Attorney Elliot Schlissel

The court ruled however that section 1304 90 day pre foreclosure service requirements applied to Farrell even if he was not living at the premises. Since the bank failed to show strict compliance with the 90 day pre foreclosure notice requirement the court granted Farrell’s cross motion to dismiss the complaint due to the bank not having met its minimum statutory requirements prior to initiating the foreclosure lawsuit.

Foreclosure Defense in Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick and Bellmore, New York

We represent individuals throughout the New York Metropolitan area with divorce and child custody, personal injury, car accident, wrongful death, estate administration, nursing home and medicaid issues

The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your particular legal issue. This is attorney advertising.

This is attorney advertising. This website is designed for general information purposes only. The information presented on this website shall not be construed to be legal advice. If you have a legal problem you should consult with an attorney.

Copyright © 2018 By The Law Offices of Schlissel DeCorpo. All Rights Reserved. Concept, Design and Hosting by GetLegal Web Development Team.