Real Estate Litigation

By Jonathan H. Freiberger The readers of this Blog know that we frequently discuss numerous aspects of residential mortgage litigation.  S ee, e.g., < here =">here</a>"> and the articles linked therein.  A related subtopic that gets much attention in this Blog is the pre-foreclosure notice requirements of RPAPL 1304 .  See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =

By Jonathan H. Freiberger Personal guaranties are contracts of suretyship pursuant to which “one party as surety binds himself to the second party as creditor to pay a debt contracted by a third party either immediately upon default of the third party or after attempts to effect collection from the third party have failed.”  General Phoenix Corp. v. Cabot , 300 N.Y. 87, 92 (1949).  As to when the surety’s obligation arises: hether a surety is a guarantor of payment or a guara

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

By Jonathan H. Freiberger 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).  [Eds. Note: such issues have been discussed in this Blog, inter alia , < here =">here</a>"> and < he

By Jonathan H. Freiberger It is common for contracts to require that one party procure, for its own protection and for the protection of the other party, specific types of insurance coverage and the dollar amounts of such coverage.  Insurance procurement provisions are typically found in, among others, construction contracts and real property leases.  Such insurance procurement provisions are material parts of the contracts in which they appear. On March 15, 2022, the Appella

By Jonathan H. Freiberger As indicated in our previous articles regarding RPAPL 881, Real property owners or lessees (“Owners”) often find that their real property is in need of improvement and/or repair (the “Work”).  [Eds. Note:  this Blog has discussed RPAPL 881 < here =">here</a>"> and < here =">here</a>"> .]  Sometimes, the Work requires access to adjoining property (a “Neighbor”).  In many instances, a Neighbor graciously permits access to the Owner’s contractors so th

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 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</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < 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