By Jonathan H. Freiberger As noted in several of this Blog’s previous articles < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> , when an individual or entity borrows money from a lender, the repayment obligation is typically evidenced by a promissory note. To secure the borrower’s repayment obligations, lenders generally request some form of collateral. When the collateral is an interest in real property, the borrower generally delivers a mortgage to t

By Jonathan H. Freiberger “The purpose of a deed is to pass title to land; it is the appropriate method of making a voluntary transfer of real property in the lifetime of the grantor.” 43 N.Y. Jur. 2d Deeds § 1 (citation/footnote omitted). A deed that is forged “lacks the voluntariness of conveyance.” Faison v. Lewis , 25 N.Y.3d 220, 224 (2015) (citation omitted). Accordingly, a deed with a forged signature “holds a unique position in the law; a legal nullity at its crea

This Blog has frequently written about numerous different issues regarding residential mortgage foreclosure. One recurring issue relates to the evidentiary proof necessary for the lender to satisfy its prima facie foreclosure case and/or to demonstrate its standing to commence its foreclosure action (when the borrower raises standing as a defense).

By Jonathan H. Freiberger Just when you thought that there is nothing left to write about on RPAPL 1304 notices, a new case is decided with an interesting twist. Followers of this Blog know that we frequently address issues involving residential mortgage foreclosure. Decisions involving the pre-foreclosure requirements of RPAPL 1304 are frequently rendered by the Appellate Courts in New York and, accordingly, are analyzed in this Blog’s articles. See, e.g., < here =">here

By Jonathan H. Freiberger On February 16, 2022, the Appellate Division, Second Department, decided Bank of New York Mellon Trust Company v. Lee , a mortgage foreclosure action that was dismissed, as abandoned, pursuant to CPLR 3215(c) due to lender’s failure to take any “proceedings toward entry of a default judgment within a year after the defendant’s default.” [Eds. Note: This Blog previously has discussed CPLR 3215(c) < here =">here</a>"> , < here =">here</a>"> , < here

By Jonathan H. Freiberger In its December 10, 2021, article entitled: “ Service of Process and Personal Jurisdiction ,” this Blog discussed the notion of a court’s personal jurisdiction over a defendant and the importance of proper service of process. In today’s article we will discuss Everbank v. Kelly , a mortgage foreclosure action decided on February 2, 2022, by the Appellate Division, Second Department, in which the Court resolved: a simple question that has not previou

By Jonathan H. Freiberger A significant part of a mortgage foreclosure action is the calculation of the sums due and owing to the lender. The task of computing the amount due is typically performed by the referee appointed by the court for that purpose. What the referee is permitted to include in the calculations, which is generally governed by statute and the underlying loan documents, includes, among other things, outstanding principal, advances for taxes, insurance and o

By Jonathan H. Freiberger On January 5, 2022, the Second Department decided Citibank, N.A. v. Kerszko . The appeal in Citibank raised numerous “interesting and unusual issues,” but the focus of today’s article is on an issue recognized by the Second Department to be addressed by it for the first time: “whether the presentment to a court of a proposed ex parte order to show cause for an order of reference, which is rejected by the court for defects inherent in the papers, qu

By Jonathan H. Freiberger This Blog’s December 17, 2021, article entitled: “ Second Department Holds that Envelopes Containing Pre-Foreclosure Notices to Borrowers Pursuant to RPAPL 1304 Cannot Contain Any Other Notices Or Information ,” discussed Bank or America, N.A. v. Kessler , in which the Second Department held that RPAPL 1304 ’s mailing requirements for the statutory notices contemplated thereby are to be strictly construed. kessler, and the blog articles hyperlinked

By Jonathan H. Freiberger Generally speaking, usury statutes prevent excessive interest from being charged on a loan. The New York Court of Appeals has noted that “ tatutes prohibiting usurious loans were enacted in the 15 th century England, became part of New York’s colonial history, and have remained since” and that “ heir purpose is to protect desperately poor people from the consequences of their own desperation.” Seidel v. 18 East 17 th Street Owners, Inc. , 79 N.Y.2d

By Jonathan H. Freiberger Followers of this Blog know that we frequently address issues involving residential mortgage foreclosure. Actions involving the pre-foreclosure requirements of RPAPL 1304 are frequently decided by the Appellate Courts in New York and, accordingly, are analyzed in our articles. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . As previously noted

By Jonathan H. Freiberger A major concern raised by potential clients when deciding whether to commence litigation is whether they are entitled to recoup their legal fees if they prevail. This issue was recently addressed in our BLOG article entitled: “ ’Can I Sue ‘Em For My Legal Fees?’ ,” in which we explained, inter alia , that: Clients are often dismayed to learn that attorney’s fees are not generally recoverable in litigation under the “American Rule,” because “ n the U

By Jonathan H. Freiberger In this Blog’s article entitled: “ Revive a Time-Barred Claim Using § 17-101 of New York’s General Obligations Law ,” we discussed the general purpose of statutes of limitations, noting that: “The Statute of Limitations was enacted to afford protection to defendants against defending stale claims after a reasonable period of time had elapsed during which a person of ordinary diligence would bring an action. The statutes embody an important policy of

By Jonathan H. Freiberger This Blog frequently writes about decisions related to residential mortgage foreclosure actions. < Here =">Here</a>" and="and" the="the" articles="articles" hyperlinked="hyperlinked" therein.="therein."> One frequent topic that is always ripe for treatment is the repeated failure of lenders to demonstrate compliance with the requirements of RPAPL 1304 due to shortcomings in the evidence presented on their prima facie case. Suffice it to say, on N

By Jonathan H. Freiberger When a borrower borrows money from a lender the repayment obligation is evidenced by a promissory note signed by the borrower and delivered to the lender. Frequently, a borrower’s repayment obligations are secured by a mortgage on real property. Upon a payment (or other) default, the lender may sue on the note or foreclose the mortgage, but cannot do both simultaneously. [Eds. Note: the issue of a lender’s election of remedies under RPAPL § 1301

By Jonathan H. Freiberger In this Blog, we frequently write about cases and developments related to mortgage foreclosure, in general, and RPAPL 1304, specifically. Indeed, in our September 24, 2021, blog < here =">here</a>"> we discussed the importance of submitting sufficient proof of compliance with RPAPL 1304 on a motion for summary judgment and hyperlinked to prior related articles. By way of brief background, and as set forth in prior articles, in general, a foreclosin

By Jonathan H. Freiberger Mortgages are commonly delivered to lenders as security for the repayment of financial obligations, which, in many cases, are evidenced by promissory notes. If borrower defaults, lender can sue on the note or foreclose the mortgage, but not both simultaneously. See RPAPL 1301 . [Eds. Note: this Blog has addressed a lender’s election of remedies < here =">here</a>"> and < here =">here</a>"> .] When real property is sold at a foreclosure sale, the

By Jonathan H. Freiberger The New York City Council promulgated rules to, inter alia , protect consumers from debt collection agencies ( see Title 20, Chapter 2, Subchapter 30 of the New York City Administrative Code (the “Code”). Indeed, the Code’s “legislative declaration” ( §20-488 ) recognizes that some debt collection agencies are “unscrupulous” and employ “abusive tactics”. The Code, at §20-489(a) , defines “debt collection agency” as: a person engaged in business th

Frequently in litigation, a plaintiff commences an action before the identity of all defendants are known. For example, in mortgage foreclosure actions “John Does” and/or “Jane Does” are named as defendants because there may be unknown individuals or entities in possession of, inter alia , a leasehold contract with respect to, or hold some other interest in, the subject real property. Indeed, RPAPL 1311 provides a list of “necessary defendants” in a mortgage foreclosure ac

This Blog has frequently addressed evidentiary issues faced by foreclosing lenders. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> ,< here =">here</a>"> . On July 21, 2021, the Appellate Division, Second Department, decided Deutsche Bank National Trust Co. v. Hossain , in which the Court addressed the sufficiency of a foreclosing lender’s evidence submitted in support of an application for a default judgment. The lender