By: Jonathan H. Freiberger This BLOG frequently writes about mortgage foreclosure, generally, and RPAPL 1304 , specifically. By way of brief background, and as addressed in numerous prior BLOG articles, the Second Department has stated that an “RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act ( Real Property Law § 265-a ), the underlying purpose of which is to afford greater protections to homeowners confronted with foreclosure.” Wells Fargo Ban

By: Jonathan H. Freiberger In today’s Blog, we revisit the requirement in RPAPL 1351(1) that a foreclosure sale occur within 90 days of the date of the judgment of foreclosure and sale. By way of brief background, and as previously discussed in this BLOG, the 90-day requirement became effective in December of 2016. However, the rule does not apply in situations where the sale occurred prior to the effective date of the amendment. U.S. Bank, N.A. v. Peralta , 191 A.D.3d 924,

By: Jonathan H. Freiberger In today’s article, we will discuss Yesmin v. Aliobaba, LLC , an Opinion and Order rendered on May 14, 2025, in which the Appellate Division, Second Department, held that “a notice of pendency that was unexpired at the time of the foreclosure sale has no effect on the title acquired by a good faith purchaser for value from a sale conducted pursuant to the judgment of foreclosure and sale.” By way of brief background, the borrower in Yesmin secured

By: Jonathan H. Freiberger Today’s article relates to a decision in a mortgage foreclosure action that combines numerous concepts about which we have previously written. We will quickly revisit CPLR 3215(c) , which provides, in pertinent part, that: If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on

By: Jonathan H. Freiberger Today’s article revisits statute of limitations issues and FAPA [1] in residential mortgage foreclosure actions [2] . Briefly stated, a mortgage foreclosure action is governed by a six-year statute of limitations. CPLR 213(4) ; see also Anglestone Real Estate Venture Partners Corp. v. Bank of New York Melon , 221 A.D.3d 943, 946 (2 nd Dep’t 2023). When mortgage payments are payable in installments, the six-year period runs from each missed paymen

By: Jonathan H. Freiberger Today’s article addresses a property owner’s right to cancel a recorded mortgage pursuant to RPAPL 1501(4) and whether a mortgagee is “is entitled to recover sums expended to preserve and maintain an allegedly abandoned property under equitable and quasi-contractual theories.” As discussed in prior articles, mortgages on real property are frequently delivered to lenders to stand as security for the repayment obligations evidenced by a promissory no

By: Jonathan H. Freiberger There are certain categories of individuals and entities that are required to be named as defendants in mortgage foreclosure actions and the failure to name such “necessary defendants” can have serious implications. New York’s Real Property Actions and Proceedings Law § 1311 , which sets forth such “necessary defendants,” provides: Each of the following persons, whose interest is claimed to be subject and subordinate to the plaintiff's lien, shall

By: Jonathan H. Freiberger Today’s article relates to CPLR 321(c) , a topic we have addressed before < here =">here</a>"> and < here =">here</a>"> . As previously discussed in this BLOG, once an attorney appears and becomes the attorney of record, the client is free to change counsel by filing with the clerk, a substitution of counsel stipulation, which must also be served on “the attorneys for all parties in the action or, if a party appears without an attorney, to the par

By: Jonathan H. Freiberger The title for today’s article refers to one of the most played songs by DJs at college parties, and VJs on the fledgling MTV Network, in the very early eighties. My hope in writing today’s article is that all readers of this BLOG in their 50s and early 60s are inspired to call the number 867-5309 and leave voice mail messages about RPAPL 1304 , the subject of today’s article. This BLOG has frequently written about mortgage foreclosure actions, in ge

By: Jonathan H. Freiberger “Just Once,” which is an appropriate title for today’s article, is a James Ingram song from Quincy Jones’ “The Dude” album; an album I have listened to many times throughout, and after, college. Today we will discuss U.S. Bank National Assoc. v. Deblinger , a mortgage foreclosure action that resulted in a decision on February 26, 2025, by the Appellate Division, Second Department. In 2017, the lender commenced an action to foreclose a mortgage afte

By: Jonathan H. Freiberger Seasoned attorneys will get the reference in the title of this article to one of Maxwell Smart’s catch phrases from “Get Smart”, but most of the younger folks might not. [1] In any event, the phrase seems prescient in light of a nuanced FAPA related change to CPLR 205 . As stated in prior BLOG articles, when a applicable statute of limitations expires during the pendency of an action, under certain circumstances, CPLR 205(a) permits the plaintiff t

By: Jonathan H. Freiberger It is axiomatic that a “plaintiff appears merely by bringing it.” Deutsche Bank Nat. Trust Co. v. Hall , 185 A.D.3d 1006, 1007 (2 nd Dep’t 2020) (citation and internal quotation marks omitted). Once served with process, a defendant must appear in an action to avoid a default. CPLR 320(a) , which sets forth, inter alia, the way a defendant can appear in an action, provides that “ he defendant appears by serving an answer or a notice of appearanc

By: Jonathan H. Freiberger Today we revisit CPLR 3215(c) , a provision addressed by this BLOG several times before. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . As previously discussed in our prior BLOGS, and by way of brief background, CPLR 3215(c) provides, in pertinent part, that: If the plaintiff fails to take proceedings for the entry of judg

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently address issues involving mortgage foreclosure, generally, and notices of pendency, specifically. Today’s article involves both issues with a sprinkle of sanctions. By way of background, and as explained in prior articles, a notice of pendency (or lis pendens ) is a provisional remedy available to litigants seeking a judgment that affects title to real property. 5303 Realty Corp. v. O&Y Equity Corp. , 64 N.

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently address issues involving mortgage foreclosure and usury. Today’s article involves both issues. By way of background, and as explained in prior articles, usury statutes were developed to “protect desperately poor people from the consequences of their own desperation.” Seidel v. 18East 17 th Street Owners, Inc. , 79 N.Y.2d 735, 740 (1992) (citations and internal quotation marks omitted). “To successfully r

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently address issues involved with mortgage foreclosure. Because of, inter alia , the frequency with which mortgages are bought, sold, assigned and otherwise transferred, one issue that frequently arises in mortgage foreclosure actions is whether the plaintiff has standing to commence its action. Briefly stated, “ tanding involves a determination of whether the party seeking relief has a sufficiently cognizabl

By: Jonathan H. Freiberger Today’s BLOG article concerns CPLR 306-b . As previously explained in prior articles, actions or proceedings (collectively, “Actions”) are commenced by filing the initiatory papers with the appropriate county clerk. CPLR 304(a) . Once the Action is commenced, the plaintiff is required to serve the initiatory papers on the defendant, and generally such service must occur within 120 days after the Action is commenced. CPLR 306-b. “If service is not

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently write about issues relating to mortgage foreclosure. [1] We have also written numerous articles relating to the recently enacted FAPA . See, e.g., [ here ], [ here ], [ here ], [ here ] and [ here ]. Today’s BLOG article relates to Wilmington Trust, N.A. v. Farkas , and Bayview Loan Servicing, LLC v. Dalal , cases decided by the Appellate Division, First Department, on November 21, 2024, and November 19,

By: Jonathan H. Freiberger As discussed in a prior BLOG article , one of the first questions asked by a potential client when consulting about a new litigation matter is “can we recoup our legal fees in the litigation.” In response, we must explain that, according to the “American Rule,” “the prevailing litigant is ordinarily not entitled to collect a reasonable attorney fee from the loser.” Alyeska Pipeline Services Co. v. Wilderness Society , 421 U.S. 240, 247 (1975) (provi

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently write about issues relating to mortgage foreclosure. We have also written numerous articles relating to the recently enacted FAPA. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . Today’s BLOG article relates to Wells Fargo Bank, N.A. v. Edwards , a case decided by the Appellate Division, Second Department, on October 30, 202