In a case in Westchester County Justice Lawrence Ecker, sitting in a Supreme Court foreclosure part, ruled due to a mistake a party’s home was sold and the sale should be set aside.

Referee Sells the Property

The sale of the property was conducted by a Referee. The homeowner had spoken to the bank’s lawyer and was under the impression the sale was not going to move forward. However, the sale did move forward and the referee sold the property to the successful bidder. The bidder provided the referee with a deposit. However, a deed was not yet provided to the successful bidder.

Communication Issues

Justice Ecker found the mistake was not related to a one-time communication. There had been communications over a two-month period and the homeowner’s attorney was assured the scheduled sale would not be moving forward. The reason for the sale not moving forward was the bank had acknowledged the homeowner had completed all the steps required for the reinstatement of the mortgage.

Justice Ecker found as a matter of equity and good conscious, the sale should be set aside. Justice Ecker also ruled the purchaser should be entitled to a refund of his deposit plus interest.

Conclusion

Even after a home is sold it is still possible to bring a motion to the court where the foreclosure lawsuit is pending, to set the foreclosure sale aside if good cause can be presented to the court.

In a case in Orange County, New York before Supreme Court Justice Maria Vasquez-­Doles a foreclosure lawsuit was commenced against homeowners. Aschmoneit was the only defendant who submitted a written answer to plaintiff’s summons and complaint. Foreclosure conferences were scheduled and plaintiff’s counsel appeared at the conferences. He stated he was unable to obtain an affidavit of merit from the plaintiff for the purpose of making a timely application for a summary judgment motion. Justice Vasquez-Doles as a result of counsel’s statement dismissed the lawsuit. Thereafter plaintiff moved to vacate the dismissal and asked for a summary judgment against Aschmoneit, the defendant.

The original lender on this case was First Federal Savings and Loan Association. Counsel for the plaintiff claimed the dismissal by Judge Vasquez-Doles was improper because an attorney for the plaintiff has appeared at the foreclosure court conference and therefore the court did not have the discretion at that conference to dismiss the case.

Bank’s Arguments Without Merit

Judge Vasquez-Doles found plaintiff’s counsels argument to be meritless. In her decision she stated at foreclosure mediation court conferences counsel for plaintiff has to both appear and be ready to proceed. In this situation plaintiff’s counsel failed to obtain/an affidavit of merit from his client. He therefore could not make a timely motion for summary judgment. She further went on to hold the dismissal was proper. There was no documentary evidence of the assignment of the mortgage provided to the court. The financial institution could not show they had a meritorious claim against Aschmoneit. Aschmoneit should have received a copy of the certificate of merit from counsel for the plaintiff when she was served with the summons and complaint. Since she was not served with this document, the dismissal of the case was correct.

Conclusion

Foreclosure cases can be dismissed based on the financial institution’s attorneys’ failing to comply with the myriad of rules, regulations, statutes and court ordered responsibilities they have.

Elliot S. Schlissel and his associates have been representing homeowners sued in foreclosure cases for more than 3 decades.