CitiMortgage Forced to Vacate Default and Accept Untimely Answer
Mr. Pollard had a mortgage with CitiMortgage. He had failed to make payments and CitiMortgage initiated a foreclosure proceeding. The case moved forward without Pollard participating in the case. Eventually, CitiMortgage moved for an Order of Reference. Mr. Pollard opposed the motion and brought a cross application to vacate the default in answering and to force CitiMortgage to accept his late Answer.
No Personal Service of Foreclosure Lawsuit Papers
Mr. Pollard took the position he did not intend to default in the lawsuit and waive his claims and defenses against CitiMortgage. He indicated in his moving papers he travels frequently related to his business situation. On the day the lawsuit was initiated, his wife Odessa was home in the house. However, she claimed she was not personally served with the foreclosure lawsuit Summons and Complaint.
Judge Agrees With Homeowner
Justice Janice Taylor sitting in the Supreme Court Foreclosure Part in Queens County was assigned to hear and determine the case. She found Mr. Pollard adequately demonstrated he did not receive actual notice of the start of the foreclosure proceeding by CitiMortgage. Justice Taylor took into consideration Mr. Pollard, although he was in default in responding to the Summons and Complaint, the period of default was only a relatively short period of time. She found in her decision that Mr. Pollard lacked any intent to abandon his claims and defenses to the foreclosure lawsuit brought by CitiMortgage. She also found that due to the short period of time that had gone by since Mr. Pollard had defaulted in answering the Summons and Complaint that CitiMortgage was not prejudiced by this delay. She also found the documents submitted by Pollard and his attorney demonstrated that he had a meritorious defense to the foreclosure based on the issue of lack of standing and the failure of CitiMortgage to comply with the Real Property Actions and Proceedings Law Sections 1304 and 1306 with regard to providing him with ninety days notice before bringing the foreclosure lawsuit. Pollard’s request to vacate the default in answering the Summons and Complaint and compelling CitiMortgage to accept the service and filing of an untimely Answer was granted.
Conclusion
Even if you ignore a foreclosure lawsuit, if the proper applications are presented to the court, the case can be reopened and brought back procedurally to the point in time when it was actually initiated.
Elliot S. Schlissel is a foreclosure defense lawyer representing homeowner throughout the Metropolitan New York area. He has represented hundreds of homeowners in foreclosure cases and helped numerous homeowners obtain mortgage modifications.
In a case before Justice Yvonne Lewis sitting in the Supreme Court Foreclosure Part in Kings County, defendant Ellery Beaver LLC brought an application for summary judgment seeking the discharge of HSBC’s mortgage on their property. HSBC brought a cross application for dismissal of the action by the plaintiff.
The Consumer Financial Protection Bureau is reviewing new regulations which will put the brakes on a contentious practice called mandatory arbitration. Under mandatory arbitration rules, consumers must take disputes they have with financial institutions to third party mediators. This prevents them from going into courts and presenting their issues to judges. Consumer advocates feel this practice benefits large financial institutions, credit card issuers and financial service providers to the detriment of consumers.
Justice Phyllis Orlikoff Flug sitting in a Foreclosure Part in Queens County Supreme Court recently had a case where the defendants moved to dismiss the bank’s lawsuit in a foreclosure legal action. The lawsuit had been initiated against the defendants Michael Pertab and Cholying Pertab in 2010. Michael had been served by personal service in July 2010 and Cholying had been served by substituted legal service in August 2010.
