On November 17, 2021, on its review en banc of its prior decision, the United States Court of Appeals for the Second Circuit changed its course in Maddox v. The Bank Of New York Trust Company, N.A., docket number 19-1774, and held that the plaintiffs’ allegations “fail to support their Article III standing, and

The Appellate Division, Third Department recently issued a decision in Citimortgage, Inc. v Ramirez, ___AD3d___, 2020 NY Slip Op 07970 (2020) (“Ramirez“), concerning the plaintiff lender’s appeal from the Supreme Court’s dismissal of an action for recovery on a note, where plaintiff’s two prior foreclosures had already been dismissed. In its decision reversing dismissal, the Third Department held that when a lender accelerates a mortgage debt and elects to commence a foreclosure of the mortgage, the six-year statute of limitations on any claim by the lender for money damages on the note is tolled during such foreclosure(s), at least to the extent the foreclosures were themselves timely when filed.Continue Reading New York Appellate Divisions Reach Different Conclusions as to Whether Actions on the Note May be Maintained once the Statute of Limitations Bars Enforcement of the Mortgage, Leaving the Issue Ripe for the Court of Appeals

In a case of appellate first impression in New York, the Appellate Division, Second Department, held that a mortgagor cannot make a Real Property Actions and Proceedings Law (“RPAPL”) 1304 argument in opposition to a motion for Judgment of Foreclosure and Sale – even if that was pled as a defense in the mortgagor’s Answer – where the prior summary judgment motion was unopposed.

In Wells Fargo Bank, N.A. v. Harrigan,[1] after the lender commenced a foreclosure action in Suffolk County against the mortgagor, the mortgagor filed an Answer, containing an RPAPL 1304 compliance defense, specifically that a 90-day notice was not properly mailed.  The lender moved for summary judgment and the mortgagor failed to oppose that motion, apparently because of some unspecified law office failure.  Thereafter, the lender moved for Judgment of Foreclosure and Sale and the mortgagor cross-moved for vacatur of the summary judgment order and dismissal of the action based on the lender’s purported failure to demonstrate RPAPL 1304 compliance.Continue Reading RPAPL Arguments May be Waived: Case of Appellate First Impression