Honing In On The Notice Of Sale

DATE PUBLISHED

15 July, 2025

CATEGORY

Mortgage Lender and Servicer Alerts

Foreclosing plaintiffs and their attorneys are all too familiar with the desperation of many defaulting borrowers which leads to litigation and delay in the foreclosure process.  New York State happens to be one of the more prominent venues suffering extensive delays in the foreclosure arena.  What is also recognized is that the zeal to oppose foreclosures does not necessarily dissipate merely because a foreclosure sale is imminent or is conducted.  Regarding the latter, what is encountered from time to time is an attempt by a defaulting borrower to vacate a foreclosure sale on the claimed ground that a notice of the sale was not received.  This was the subject of a recent case [L&L Capital Partners, LLC v. Elohim, Inc., 229 A.D.3d 614, 215 N.Y.S.3d 432 (2d Dept. 2024)].

While the principles expressed in this case are not unusual – they are fairly standard – being aware of them is nonetheless helpful and meaningful.

Speeding first to the result, the trial court denied the borrower’s motion to vacate the sale and the appeals court (the Second Department) affirmed. Some of the basic tenets recited by the Appellate Division in its affirmance follow.

First, a party to a foreclosure action who has appeared in this action and has not waived service is entitled to be served with all papers in the action, including the notice of sale – pursuant to CPLR § 2103.

With that in mind, CPLR § 2003 empowers the court to set aside a judicial sale within one year for non-compliance with the requirements of the CPLR as to the notice, time or manner of such sale, critically though, if a substantial right of a party was prejudiced by the defect.

Likewise, RPAPL § 231(6) provides that at any time within one year after a sale, the court, upon terms which are just, has the ability to set aside the sale for neglect to comply with the provisions of the cited section as to notice, time or manner of such sale – again, if a substantial right of a party was prejudiced by that defect.

In the cited case, the foreclosing plaintiff opposed the motion to vacate and was found to have prima facie demonstrated evidence of proper service of the notice of sale.  Meaningfully, and this is of wide application, the defendant’s bare and unsubstantiated denials of receipt of the notice of sale are insufficient to rebut a plaintiff showing that there was indeed a mailing.  While that finding alone should have closed the case, the court added that the defendants fail to establish that they were prejudiced by any defect in service of the notice of sale. 

This confirms what other cases have said.  Even if it can be shown that the notice of sale was not served as required, if the defendant is unable to show that it was prejudiced by that lack of notice, an attempt to overturn the sale is likely to be denied.


Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2024), is a partner with Berkman, Henoch, Peterson & Peddy, P.C. in Garden City, New York. He is also a member of the The American College of Real Estate Lawyers, a fellow of The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.