Bank Fails to Prove Standing, Not Entitled To Summary Judgment in Foreclosure Action

Plaintiff HSBC Bank moved for summary judgment against Murphy, among other things, in this foreclosure on a mortgage action against the subject real property. It alleged it was in possession of the original note with proper endorsement and/or allonge, thus, was the holder of the note and mortgage, stating Murphy defaulted by failing to make scheduled monthly payments. The court granted bank's motion to consolidate two actions, and for a default judgment against defaulting, non-answering defendants. Murphy alleged bank lacked standing arguing the copy of the original note and blank endorsement annexed to its motion and affidavits was invalid as it was on a separate, undated, otherwise blank page. The court agreed, finding the affidavit of Doublin, a document execution specialist for bank's servicer, attesting its physical possession of the original note endorsed in blank, was insufficient on its face. It stated the endorsement itself failed to contain any evidence it was "firmly affixed thereto as to become a part thereof." Doublin also offered no information as to the original note's condition, simply noting Nationstar, as bank's agent, received the original note Sept. 3, 2013, and remained in possession. Thus, bank was not entitled to summary judgment.

Read more: http://www.newyorklawjournal.com

Lender's Failure to Comply With RPAPL §1303 Requires Dismissal of Foreclosure Action

Plaintiff bank moved for summary judgment and an order of reference in this action to foreclose a mortgage on an owner-occupied, two-family dwelling. Mitchell cross-moved to dismiss the action alleging bank's failure to serve him with RPAPL §1303 notice. Bank's process server alleged he personally served Mitchell with the §1303 notice when he served the summons and complaint, stating same was effectuated at Mitchell's residence. Mitchell's affidavit averred he was never personally served with §1303 notice or the summons and complaint, stating at the time the process server allegedly served papers, Mitchell was more than one mile away from the home at a local store. The court stated as Mitchell submitted admissible proof controverting the process server's affidavit, the matter was referred for a traverse hearing, and the special referee concluded service of process was not properly effectuated on Mitchell. It found no merit to bank's claim Mitchell waived bank's noncompliance with §1303, noting a lender's failure to comply with §1303 was not an affirmative defense that a defendant to a foreclosure action was required to assert in an answer. Therefore, Mitchell's cross-motion to dismiss was granted and the motion denied.

Read more: http://www.newyorklawjournal.com

THE 90-DAY NOTICE REQUIREMENT EXTENDS THE STATUTE OF LIMITATIONS

New York’s RPAPL 1304 requires that prior to the commencement of a foreclosure action, a notice must be given to the borrower allowing 90 days to cure the default before the plaintiff is allowed to file the summons and complaint.

However, it is often the case that the Statute of Limitations is about to expire during this 90-day period, and servicers are often concerned that if they wait the 90 days to comply with the 90-day notice requirement imposed by RPAPL 1304, the Statute of Limitations will expire. Those who are unaware of CPLR 204A may, therefore, be tempted to initiate the action without first complying with RPAPL 1304.

This is a big mistake, as the failure to comply with RPAPL 1304 will cause the foreclosure to be fatally defective, and the action to be dismissed. (See my prior article - Recent Decisions Regarding New York’s Pre-Foreclosure Requirements).

New York’s CPLR 204A, however, expressly provides “Where the commencement of an action has stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced.”  Furthermore, when New York State’s Court of Appeals, New York's highest court, decided the case Archer v. New York City Transit Authority, they expressly ruled that CPLR 204A extends the Statute of Limitations by the amount of time during which Plaintiff has stayed from commencing the action.

Accordingly, banks and servicers should meticulously comply with the requirements of RPAPL 1304, wait to file the summons and complaint until after the 90 days has expired, and take comfort in the extension granted by CPLR 204A. 

This Story is from Peter T. Roach & Associates, P.C. click here to view their blog.

Brooklyn Supreme Court Justice Arthur Schack Dies

Andrew Denney, New York Law Journal

May 4, 2016

Brooklyn Supreme Court Justice Arthur Schack, who attracted attention during his tenure for taking a hard line against banks seeking to evict New Yorkers from their homes through foreclosure, died on Monday after a lengthy battle with anemia. He was 71.

Schack was born and raised in the Bensonhurst section of Brooklyn. He obtained a bachelor's degree from Brooklyn College in 1966 and a master's degree from Indiana University in 1968.

For more than a decade after obtaining his master's, Schack worked as a high school social studies teacher in the Bay Ridge section of Brooklyn and was active with the United Federation of Teachers during that time.

In 1980, Schack obtained his J.D. from New York Law School and left teaching. From 1983 to 1998, he served as a member of Community Board 10. He was also active in Democratic politics.

"Artie was kind of a Renaissance man," said Joseph Bova, Democratic district leader for the 49th Assembly District and a member of the Stars and Stripes Democratic Club, of which Schack was a member before he became a judge.

An avid baseball fan, Schack worked as counsel to the Major League Baseball Players Association from 1982 to 1998. He was elected to the Brooklyn Civil Court in 1998 and to the Supreme Court in 2003.

Justice Lawrence Knipel, the administrative judge for civil matters in Brooklyn Supreme Court, said in an interview that, as a jurist, Schack could be relied upon to handle difficult cases.

"He never said no to an assignment and he was known for taking on some of the toughest cases," Knipel said.

Additionally, Knipel said, Schack was known for penning colorful opinions that "grabbed readers' attention" with alliteration or allusions to Shakespeare.

Schack made national news for his tough stance against banks and lenders in foreclosure proceedings, rejecting petitions with shoddy or incomplete paperwork. In 2011, he issued a ruling ordering HSBC Bank executive to appear for a sanctions hearing.

"He wasn't afraid to take a principled stand on anything," Knipel said, noting that some Schack's decisions in foreclosure cases were later reversed by the Appellate Division, Second Department.

Arthur Aidala, president of the Brooklyn Bar Association and a partner at Aidala Bertuna & Kamins who was a longtime friend of Schack's, said that Schack's decisions could be controversial, but that the judge was more concerned with doing what he felt was right rather than what he thought would be popular when weighing in on an issue.

"A practitioner like myself had the utmost respect for a judge who does what he or she thinks is right," Aidala said.

Schack is survived by his wife Dilia; his daughter Elaine, who is a court attorney in Brooklyn; and his son, Douglas.

A visitation will be held Wednesday from 11 a.m. to 11:45 a.m. at Shermans Flatbush Memorial Chapel, 1283 Coney Island Ave., and a funeral will be held at noon.

Thereafter, interment will take place at the Green-Wood Cemetery in Brooklyn.

The family will be sitting Shiva at 8903 Ridge Blvd., from 6 to 9 p.m. on Wednesday; from 1 to 8 p.m. on Thursday; and from 11:30 a.m. to 2 p.m. on Friday.