In U.S. Bank Nat’l Ass’n as Tr. for Structured Adjustable Rate Mortg. Loan Tr., Mortg. Pass-Through Certificates, Series 2005-23 v. Haskins, 2019 WL 6888654 (S.D.N.Y. Dec. 18, 2019). The District Court for the Southern District of New York granted the plaintiff’s motion for summary judgment on a strict foreclosure claim against a junior lienholder not named in the foreclosure.
The junior lien was filed in March 2014. The foreclosure’s initial lis pendens was filed in February 2011, expired on February 2014 and was not refiled until April 2014. Thus, the judgment lien was filed during the gap period in the lis pendens. The foreclosure was completed, and plaintiff purchased the property at foreclosure sale.Thereafter, the Plaintiff brought a strict foreclosure in order to extinguish the missed judgment. The parties moved for cross summary judgment.
The Court found that defendant’s lien was junior to plaintiff’s mortgage, and that the lien survived the foreclosure sale and remained on the property since it was filed during the gap period. The Court differentiated between the fact that the plaintiff brought the action under RPAPL 1352 (strict foreclosure), versus RPAPL 1503 (re-foreclosure), and 1352 does not require the plaintiff prove the absence of fraud or willful neglect. Thus, defendant’s allegation that re-filing of the lis pendens was negligent was found irrelevant.The Court granted the plaintiff’s motion for summary judgment, denied defendant’s cross motion, and ordered that defendant had… “60 days to notify of his intent to exercise his right of redemption, pay the mortgage debt, along with the value of improvements made to the property, to maintain his interest in the property.”
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