Friday, March 29, 2013

Purported Non-Compliance with Requirements of Administrative Order 548/10 Insufficient to Vacate Judgment of Foreclosure and Sale

By Matthew D. Donovan on March 19th, 2013
Posted in Administrative Order 548/10, CPLR 3408, CPLR 5015

In a February 19, 2013, decision by Justice Whelan, the court denied plaintiff-mortgagee-lender’s motion to vacate a judgment of foreclosure and sale, as well as the order of reference, and to extend the notice of pendency. Plaintiff moved on the basis of an alleged failure by a prior servicer to comply with the new substantive requirements of Administrative Order 548/10 (the “Admin. Order”). The underlying foreclosure action was commenced in January 2008. Defendant-mortgagor-borrower failed to answer and appear. A judgment of foreclosure and sale was granted in July 2010, which noted that defendant was in default for an amount in excess of $350,000. The court began its analysis of plaintiff’s motion by reiterating its previous finding that the Admin. Order and its additional substantive requirements “constitute[d] an impermissible exercise of the rule making authority vested in the chief administrator of the courts” and therefore was “an unauthorized intrusion upon the jural relations of the parties to this action and upon the court.” The court then found that, in any event, the attorney affirmation and the servicer affidavit submitted by the prior servicer were in compliance with the requirements of the Admin. Order. Noting that the foreclosure action had been pending for over 1,800 days, the court concluded that “[t]he time had come” for an end to the litigation.

US Bank v Castillo, Sup Ct, Suffolk County, January 19, 2013, Whelan, J., Index No. 2161/08

"The courts are really starting to swing back in favor of the banks and are increasingly showing  “the time had come for an end to the litigation” mindset." -Robert E. Brown, Esq.

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