Zeyad Elgawish

In US Bank Nat’l Ass’n v. Salvatierra, 2022 NY Slip Op 03023 (N.Y. App. Div. May 4, 2022), we successfully appealed an order of the Supreme Court, Queens County, which denied the plaintiff’s motion for default judgment and granted that defendant’s cross motion for leave to serve a late answer.

The Defendant raised several arguments to support the lower court’s order. Among other things, Defendant argued that his appearance and participation in mandatory foreclosure settlement conferences reasonably excused his failure to answer and that CPLR 3408(m) entitled him to serve and file a late answer. In the alternative, Defendant claimed that he was never advised by counsel at the settlement conferences of the need to file or serve an answer and that the lower court correctly granted his cross motion. We addressed each of these points in our appeal of the order. The Appellate Division agreed with our arguments and reversed, holding that the lower court improvidently exercised its discretion in finding that Defendant demonstrated a reasonable excuse for his default in appearing or answering the complaint. The Court further held that Plaintiff demonstrated entitlement to a default judgment and that the lower court should have granted its application seeking the relief.

To read the Appellate Court’s Order, click HERE.

In Wilmington Sav. Fund Soc’y, FSB v. Heampstead Prop. Ventures II, LLC, 2022 NY Slip Op 03142 (N.Y. App. Div. May 11, 2022), we successfully appealed a lower court order which dismissed a foreclosure complaint as time-barred by the statute of limitations.

The facts relevant to the appeal are straight forward. In 2007, a borrower took out a $320,000 mortgage on real property located in Hempstead, Long Island. The borrower eventually defaulted on his obligations, prompting Countrywide Home Loans, Inc. (“Countrywide”), the holder of the mortgage at the time, to initiate foreclosure proceedings on December 11, 2007. Countrywide later moved to discontinue the prior action, which was granted by court order dated June 10, 2013. A subsequent foreclosure action was commenced on May 7, 2019, against Heampstead Property Ventures II, LLC (hereinafter Heampstead Property Ventures), among others. The action proceeded in the ordinary course and plaintiff filed a motion seeking, inter alia, summary judgment. In opposition to the motion, Heampstead Property Ventures argued that summary judgment should be denied because the action was time-barred and on November 25, 2019, the lower court dismissed the action on those grounds.

In our appeal of the dismissal, we successfully argued that it was improper for the lower court to search the record and, in effect, award summary judgment in favor of Heampstead Property Ventures. We also addressed the merits of the untimeliness claims and argued that the voluntary discontinuance of the prior action revoked the acceleration of the debt. The Appellate Division agreed and the lower court’s order was reversed, on the law, with costs.

To read the Appellate Court’s Order, click HERE.

In U.S. Bank Tr., N.A. v. Chiramannil, 2022 NY Slip Op 03270 (N.Y. App. Div. May 18, 2022), we successfully defended against the defendant’s appeal of a lower court order granting plaintiff’s motion for summary judgment.

In Chiramannil, the defendant argued that the lower court’s order must be reversed because, among other things, the plaintiff failed to establish its compliance with statutory conditions precedent to foreclosure required under New York Real Property Actions & Proceedings Law (RPAPL) sections 1303, 1304, and 1306. The Second Department rejected each of the defendant’s arguments and affirmed the lower court’s order. More specifically, the Appellate Division held that plaintiff demonstrated compliance with RPAPL 1303 “by submitting an affidavit of service in which the process server attested that he served the defendant with the summons, complaint, and notice of pendency, along with a notice printed on colored paper that is other than the color of the summons and complaint, in compliance with RPAPL 1303, as well as a copy of the subject notice.”

The Appellate Division similarly found that the plaintiff proved compliance with RPAPL 1304 by submitting copies of the notices themselves together with the affidavit of an employee of its loan servicer, who attested to a standard office mailing procedure and averred that the notice was sent by both certified and first-class mail. With respect to RPAPL 1306, the Appellate Division found that the plaintiff demonstrated compliance with RPAPL 1306 by submitting a copy of a proof of filing statement from the New York State Department of Financial Services.

To read the Appellate Court’s Order, click HERE.