FORECLOSURE – BANK’S CASE DISMISSED – STATUTE OF LIMITATIONS BARS BANK FROM RE-FILING CASE

Court:  New York Supreme, Suffolk
Parties: U.S. Bank, N.A., plaintiff  v. Sylvester and Samuel, defendants

In this foreclosure case, Mr. Calender was retained by the defendants, both of whom signed a mortgage and note with the plaintiff bank, after a Foreclosure Judgment had been entered against them by default. They had been served with a notice that the house (which was used as collateral to secure repayment of the mortgage loan) was scheduled to be sold shortly at public auction to satisfy an unpaid mortgage balance in excess of $400,000. On the day before the scheduled public auction, attorney Calender filed an emergency application and obtained a court order staying the sale pending a hearing on the issue presented in his application, namely, whether the Foreclosure Judgment was obtained by the bank in violation of the clients’ rights under the New York Civil Practice Law and Rules.

At the hearing, attorney Calender proved through the testimony of his clients, the bank’s records, and the documents filed by the bank in the case, that the manner in which the bank initiated the foreclosure case violated several rules of New York law. In February 2016 the New York Supreme Court, Suffolk County, granted Mr. Calender’s application, declared the Foreclosure Judgment a nullity, cancelled the public auction, and dismissed the case outright. 

This case has a very unusual and interesting feature. At the time of dismissal of the bank’s case in February, the statute of limitations for filing a foreclosure case on the mortgage had expired. Consequently, the bank is forever barred from re-filing their foreclosure case on the mortgage loan which is the subject of this case. The breathtaking result is that the clients now own the home free and clear of the mortgage and any legal claim from the bank. As of May 2016, there is a pending application by the bank’s attorneys seeking permission from the court to re-file their case. That application is without legal merit and is almost certain to be denied.