Are Not Foreclosure Papers Due On Time?


15 June, 2022


Mortgage Lender and Servicer Alerts

Well, yes.  And when foreclosing plaintiffs are late, they often suffer the consequences.  What about defendants?  While not based upon empirical evidence, reading the cases suggests that defendants – borrowers anyway – are not infrequently given considerably more leeway to be late.  But not always, and that is the point of a recent case [Deutsche Bank National Trust Company v. McEnery, 197 A.D.3d 1238, 154 N.Y.S.3d 99 (2d Dept. 2021)]. 

To explain what this means in the practical sense, New York procedure rules require time limits for most functions, motions the subject of this discussion.  When a motion is served, it is returnable (that is the day it is to be heard in court) a certain minimum days later.  When that minimum is used, answering papers need be served only two days prior to the return date.  Since that does not afford the moving party a great deal of time to respond, the maker of the motion will often avail itself of a later return date so that the answering papers would be due seven days prior, thus allowing reply papers a bit more time for preparation.  What happens frequently, though, is that a defendant will not answer the motion within that seven-day period, but rather will submit the papers perhaps four days prior, maybe two or one or even on the return date.  If the moving party rejects the papers as late, the courts are prone to accept them anyway although likely affording the moving party perhaps further time to reply.  That in turn serves to delay the case – just what foreclosing plaintiffs wish to avoid.   Liberality in these matters seems to be the standard.

Sometimes however (not often enough from the viewpoint of foreclosing plaintiffs), the courts are more stringent about enforcing time requirements, as was so in the recent case mentioned.  There, a motion for summary judgment was returnable on March 21.  Answering papers were due on March 14 (pursuant to CPLR §2214(b)).  The borrower-defendant neglected, however, to submit answering papers on the required date.  In fact, the borrower waited until six days after the return date of the motion to serve the opposition papers.

In the face of that, the court granted the plaintiff’s motion, determining that contrary to the defendant’s assertion that he was not served with the plaintiff’s motion, the affidavit of service of the motion showed timely service.  Further, it was apparent that the borrower was aware of the filing of the motion because the case was on-line.  Accordingly, the court deemed the defendant’s opposition to be untimely and a nullity; therefore the motion was found to be unopposed.

Aggrieved by the ruling rejecting its late papers, the borrower appealed and the Appellate court affirmed, holding that under the circumstances of the case, the trial court appropriately exercised its discretion in declining to consider the opposition because the defendant failed to provide a valid excuse for the late service.  [We normally refrain from case and statutory citations in these alerts but mindful that readers may wish to have readily available the authority for a decision like this note that the citations were as follows:  CPLR 2214[b]; 2014[b][2], [7]; Risucci v. Zeal Mgt. Corp., 258 A.D.2d 512, 512, 685 N.Y.S.2d 280; see also CPLR 2004; Bank of Am., N.A. v. Afflick, 172 A.D.3d 1146, 1147, 102 N.Y.S.3d 63).

It’s reasonable to observe, nonetheless, that foreclosing lenders will still be constrained to accept late papers from borrowers.  But from time to time the courts will impose time frames more stringently.  This was one example worthy of note.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2022), is a partner with Berkman, Henoch, Peterson & Peddy, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, 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.