Mortgage Foreclosure-Related Handdowns - March 2, 2022
Second Department
Central Mtge. Co. v Ango, 2022 Slip Op 01286 (March 02, 2022)
The Second Department reversed a conditional order of dismissal issued by Justice Knipel on the basis that a court may not dismiss an action “based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met.” Because issue had not been joined, CPLR § 3216 was not available as a statutory basis for dismissal.
Deutsche Bank Natl. Trust Co. v Blackman, 2022 Slip Op 01289 (March 02, 2022)
The Second Department reversed an order granting summary judgment to the plaintiff on the basis that the plaintiff failed to demonstrate that the subject loan was not a home loan and also failed to demonstrate strict compliance with RPAPL § 1304. Although the plaintiff submitted copies of the 90-day notices purportedly sent to the defendant, the plaintiff failed to demonstrate, prima facie, that the notices were actually mailed, through either an affidavit of service, other proof of mailing by the United States Postal Service, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.
Deutsche Bank Natl. Trust Co. v Salva, 2022 Slip Op 01290 (March 02, 2022)
The Second Department reversed an order granting summary judgment on the basis that the RPAPL § 1304 notice contained “additional disclosures” in violation of RPAPL § 1304, citing Kessler and DeFeo.
HSBC Bank USA, N.A. v Min Young You, 2022 Slip Op 01293 (March 02, 2022)
The Second Department affirmed an order granting summary judgment to the plaintiff and denying the defendant’s cross-motion to dismiss. Defendants argued that the action was time-barred because a prior action had been filed in 2009, but plaintiff demonstrated that it had voluntarily discontinued within six years of commencement of that action. Plaintiff defeated defendants’ standing challenge because a copy of the endorsed note was attached to the complaint.
MTGLQ Invs., L.P. v Balan, 2022 Slip Op 01298 (March 02, 2022)
The Second Department affirmed an order denying defendant’s motion for leave to renew her opposition to plaintiff’s summary judgment motion. The court did not discuss what the new facts were and simply held that “defendant did not provide a reasonable justification for her failure to present the newly proffered facts in her original opposition to FNMA's motion.” The Court also acknowledged that, “[a] court may, in its discretion, vacate its own orders "for sufficient reason and in the interests of substantial justice,” citing the banks’ favorite case in motions to vacate decades-old dismissals, Woodson v Mendon Leasing Corp., 100 NY2d 62, but held that this case did not present unique or unusual circumstances.
U.S. Bank N.A. v Scully, 2022 Slip Op 01340 (March 02, 2022)
The Second Department affirmed an order denying defendant’s motion to dismiss on the basis of lack of standing and the argument that the loan had been rescinded due to the Truth in Lending Act (“TILA”). The defendant had argued that the dismissal of a prior action did not establish a condition precedent to commencement of the subsequent action that required the plaintiff to file an affidavit establishing note possession with the complaint in the subsequent action. Additionally, standing was established by attaching a copy of the endorsed note to the complaint in the subsequent action. While "TILA gives the consumer an unconditional right to rescind the transaction within three days of (1) the consummation of the transaction, or (2) the delivery of certain required disclosures and rescission forms to the consumer, whichever occurs later,” there was no evidence that the defendant timely exercised his right to rescind the mortgage under TILA.
Wells Fargo Bank, N.A. v Galloway, 2022 Slip Op 01344 (March 02, 2022)
The Second Department affirmed a judgment of foreclosure and sale because the appeal contained an argument raised for the first time on appeal that the order of reference, which does not appear to have been appealed from, was issued in violation of CPLR § 321(c).