In a case before Justice David Elliot in Queens County, Supreme Court a foreclosure action was brought by Americas Wholesale Lender. The lender claimed the defendants were in default in their mortgage payments.

Motion to Dismiss

The defense in this case made a pre-answer application to the court asking to dismiss the action based on the fact it was time barred by the statute of limitations. The statute of limitations in foreclosure cases is 6 years from the time the debt is accelerated and/or the entire amount is called to be due and owing. In this case the defendants were able to show the debt was accelerated by commencement of a foreclosure action in 2008 which was subsequently discontinued.

Statute of Limitations Expired Two Years Earlier

The plaintiff in this case brought this foreclosure lawsuit more than 2 years after the expiration of the 6 year statute of limitation period. In their motion the defendants were able to adequately establish the case was time barred by the 6 year statute of limitations.

Judge Elliot in his decision found the plaintiff did not raise an issue of fact that the statute of limitations was re-set by the defendant’s alleged payment in 2010. In addition the attorneys for the financial institution did not establish there was a re-acknowledgment of the debt via a letter requesting a mortgage modification. The defendants’ motion to dismiss the lawsuit was granted.

Conclusion

In each and every case where a foreclosure is initiated against a homeowner the question as to whether there is a complete defense based on the statute of limitation must be evaluated. Should there be a statute of limitations defense an appropriate motion to dismiss should be made.

Elliot S. Schlissel is a foreclosure defense lawyer representing homeowners throughout the Metropolitan New York area for more than 3 decades.

In the case of first impression Justice William Giacomo sitting in the Supreme Court foreclosure part in Westchester County was presented with an issue concerning the filing of a late answer by a homeowner. JP Morgan Chase had started a foreclosure lawsuit on June 8, 2016. The defendant, Hernandez, did not submit a notice of appearance and a written answer; however she did appear at 5 foreclosure settlement conference meetings at the courthouse. The case was eventually removed from the foreclosure settlement part on March 15, 2016. On March 30, 2016 she filed a written answer. The attorneys for JP Morgan Chase rejected the answer. They claimed that the time to submit an answer had expired.

Hernandez brought a motion requesting the court force JP Morgan Chase to accept the late filing of the answer. Justice William Giacomo in his decision held the intent of the new legislation was to allow pro se defendants (defendants who do not have an attorney) who participate in foreclosure conferences to submit answers after the foreclosure conferences end even though they are untimely. In this case Judge Giacomo stated that Hernandez was served with a summons and complaint on June 18, 2016 and she participated in foreclosure settlement conferences. The court noted that 15 days after the case was removed from the foreclosure conference part Hernandez filed her answer. The Judge held that the intent of the new legislation was to allow individuals representing themselves to participate in the litigation process. In this case he found JP Morgan Chase would not suffer any prejudice in permitting Hernandez to file a late answer. He therefore granted her motion and a late answer was now considered to be timely served.

Conclusion

This is a terrific decision for homeowners. Many homeowners come into my office and participate for months and months in the foreclosure settlement conference part only to have their mortgage modification applications denied. They then find themselves in a litigation court part, however since they have not submitted an answer they have defaulted in the case and the judge won’t hear their side of the story. This new statute allows homeowners to file late answers and participate in the legal proceedings regarding the foreclosure on their home.

Elliot S. Schlissel and his associates are foreclosure attorneys, with more than 100 years of combined legal experience, representing homeowners on foreclosure cases throughout the metropolitan New York area. We can be reached at 1-800-344-6431, (516) 561-6645, or (718) 350-2802 for a free consultation.

Elliot S. Schlissel and his associates are foreclosure attorneys, with more than 100 years of combined legal experience, representing homeowners on foreclosure cases throughout the metropolitan New York area. They can be reached at 1-800-344-6431, (516) 561-6645, or (718) 350-2802 for a free consultation.

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

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.

In a case pending in Supreme court in Westchester county, justice William Glacomo sitting in a foreclosure part dealt with an unusual issue.  US Bank had brought a foreclosure proceeding. In the foreclosure case they had moved for summary judgement (this is a motion requesting a foreclosure order without the need for trial).  They claimed Eisman, who is now deceased did not make his mortgage payments.  An estate was formed for the decedent Eisman. The executor of the estate argued the estate didn’t receive the appropriate notice the home was going into foreclosure under the Real Property Actions and Proceedings Law section 1304.  This section requires a financial institution to give 90 days notice to a homeowner prior to initiating the foreclosure lawsuit.

90 Day Notice Required

Justice William Giacomo found the 90 day notice required under Real Property Actions and Proceedings Law section 1304, only applied to living persons not to estates.  Because Eisman was dead he did not have to be served at the cemetery and the executor of the estate also did not have to be served.

Judge Giacomo’s rational was since the borrower was dead, there was no longer a notice requirement which needed to be given to this borrower. He therefore held that Real Property Actions and Proceedings Law section 1304 no longer applied.

The Estate Issue

When someone dies an estate is created, the executor if there is a will and the administrator, if there is no will, stands, in the shoes of the decedent.  If an obligation was owed to decedent to provide 90 days notice prior to initiating a foreclosure lawsuit, why shouldn’t this also apply to the estate of the decedent?  I believe this issue should be taken up on appeal.

Elliot S Schlissel and his associates are foreclosure lawyers who defend homeowners in the Metropolitan New York area.