This Blog has addressed many issues related to mortgage foreclosure. < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and . As to the issues relating to the standing of a lender to commence a foreclosure action, this Blog has not

Statutes of limitations, which are a critical part of litigation, are designed to prevent litigants from sitting on their rights. A brief primer on New York’s Statute of Limitations, is contained within this Blog’s post, “ Second Department Finds No Issue of Fact as to Whether Defendant Should be Estopped From Asserting a Statute of Limitations Defense. ” Article 2 of New York’s CPLR addresses Statute of Limitations issues. The CPLR contains several provisions that toll or

Referees are frequently appointed by New York courts. The fees to which an appointed referee is entitled are generally governed by Rule 8003 of the New York Civil Practice Law and Rules (“CPLR”). CPLR 8003(a) presently provides that: A referee is entitled, for each day spent in the business of the reference, to three hundred fifty dollars unless a different compensation is fixed by the court or by the consent in writing of all parties not in default for failure to appear or

Referees are frequently appointed by New York courts. The fees to which an appointed referee is entitled are generally governed by Rule 8003 of the New York Civil Practice Law and Rules (“CPLR”). CPLR 8003(a) presently provides that: A referee is entitled, for each day spent in the business of the reference, to three hundred fifty dollars unless a different compensation is fixed by the court or by the consent in writing of all parties not in default for failure to appear or

Under the present “commencement by filing” system, an action (or proceeding) (collectively, an “Action”) is commenced by filing ( CPLR 304 (a))the initiatory paper(s) with the “clerk of the court in the county in which the ction … is brought or any other person designated by the clerk of the court for that purpose (CPLR 304(c)). Once an Action is commenced, the plaintiff (or petitioner) (collectively, a “Plaintiff”) must effectuate service of process pursuant to the paramete

This Blog has previously addressed issues surrounding various evidentiary issues faced by foreclosing mortgage lenders, among others, in proving their prima facie case on summary judgment. < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> . On September 25, 2019, the Appellate Division, Second Department, in JPMorgan Chase Bank v. Grennan , yet again analyzed the sufficiency of the foreclosing lender’s evidence submitted on its moti

In mortgage foreclosure actions, and other actions in which a party is suing on a promissory note (or other negotiable instruments) ( a “Note”), a plaintiff must allege that it is in possession of the underlying Note in order to establish that it has standing to prosecute the action. As this Blog has previously noted in the Blog < The=">The" Second="Second" Department="Department" Denies="Denies" Summary="Summary" Judgment="Judgment" to="to" Another="Another" Foreclosing="Fo

This Blog has featured numerous treatments of the procedural, substantive and evidentiary law in residential mortgage foreclosure actions. < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , and < HERE =">HERE</a>"> . The Supreme Court of the State of New York, Appellate Divisi

Like the iconic scene when a cruise ship is leaving the dock, the New York Supreme Court, Appellate Division, Second Department, in BAC Home Loans Servicing, LP v. Alvarado (January 30, 2019), has everyone waiving. CPLR 3018(b) requires that “ party plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading….” Generally, affirmative defenses are waived by the def

In the prior Blog article GET RID OF A STALE MORTGAGE BY BRINGING AN ACTION UNDER RPAPL 1501(4) , we discussed provisions of New York’s Real Property Actions and Proceedings Law that permit a mortgagor to remove, of record, the lien of a stale mortgage on real property. New York’s Real Property Law contain a similar provision that permits the court to cancel certain recorded instruments that are clouds on title but were not recordable or were not required to be recorded. Th

Typically, a mortgage on real property is delivered to stand as security for the repayment of an obligation evidenced by a promissory note. A mortgage is an encumbrance on real property. If there is an opportunity to remove such an encumbrance, it makes sense to do so. For example, when a home mortgage is fully paid, a homeowner typically sees to it that a satisfaction of mortgage is obtained from the lender and promptly recorded. In situations where a mortgage appears as

This Blog has addressed numerous issues relating to mortgage foreclosure actions. < HERE =">HERE</a>"> < HERE =">HERE</a>"> < HERE =">HERE</a>"> < HERE =">HERE</a>"> < HERE =">HERE</a>"> < HERE =">HERE</a>"> . “ The Second Department Denies Summary Judgment To Another Foreclosing Mortgagee Due To The Insufficiency Of Evidence Presented On The Motion ” addressed the sufficiency of evidence necessary for a lender to demonstrate that it is the holder of the underlying note and

Not every case can be brought in the federal court system. Supreme Court Justice Antonin Scalia, in explaining the limited nature of federal court jurisdiction, stated that “ hey possess only that power authorized by the Constitution and statute, which is not to be expanded by judicial decree.” ( Kokkonen v. Guardian Life Insurance Company of America , 114 S.Ct. 1673, 1675 (1994) (citations omitted).) Stressing his point, Justice Scalia continued by pointing out that, “ t

On several occasions, this Blog has treated issues related to problems faced by mortgagees foreclosing on certain residential loans. “ Appellate Division Second Department Tells Foreclosing Residential Lender to ‘SHOW ME THE EVIDENCE’ ” addressed the sufficiency of evidence necessary for a foreclosing lender to demonstrate compliance with the requirement under RPAPL §1304 that ninety days prior to the commencement of an action to foreclose a home loan, a lender must send a

“Timing is everything”, it is often said. A fine illustration of this often-uttered phrase can be found in Reverend C.T. Walker Housing Dev. Fund Corp. v. City of New York (E.D.N.Y. March 5, 2018), an appeal from the United States Bankruptcy Court for the Eastern District of New York. The Reverend C.T. Walker Housing Dev. Fund Corp. (“Walker”) owned property on 135 th Street in New York City (the “Property”). The New York City Department of Housing Preservation and Devel

In two recent blog posts entitled: “ Appellate Division, Second Department Tells Foreclosing Residential Lender to ‘SHOW ME THE EVIDENCE ’” and “ The Second Department Denies Summary Judgment to Another Foreclosing Mortgagee Due to the Insufficiency of Evidence Presented on the Motion ,” foreclosing mortgagees were cautioned that evidence in admissible form must be submitted to the court to demonstrate compliance with the many statutory provisions that must be followed to en

A recent blog post entitled: “ Appellate Division, Second Department Tells Foreclosing Residential Lender to ‘SHOW ME THE EVIDENCE ,’” cautioned foreclosing mortgagees that evidence in admissible form must be submitted to the court to demonstrate compliance with the many statutory provisions that must be followed to ensure a successful foreclosure action. The Second Department in U.S. Bank National Association v. Brody , decided on December 20, 2017, reiterates that foreclo

Mortgages on real property are typically delivered to a lender to secure loans evidenced by promissory notes. When a default occurs under the note and/or mortgage litigation frequently follows. If the borrower and/or guarantor are solvent, the lender may choose to sue on the note for monetary damages in an action at law. If the property is valuable, but the borrower has insufficient funds to satisfy a money judgment the lender might decide to sue to foreclose the mortgage

It is widely known that there is a residential foreclosure crisis throughout the country and New York State is no exception. The New York State Legislature responded by promulgating a series of rules designed to protect residential homeowners. These rules, however, place additional burdens on foreclosing lenders and courts throughout New York State have demonstrated little sympathy for foreclosing lenders that fail to follow these rules. For example, section 1303 of the Re