Good News: New Statute In New York – Successors Lis Pendens Allowed


15 November, 2005


Mortgage Lender and Servicer Alerts

This may sound like purely technical stuff, but it is really quite important as a practical matter.

In New York, a judgment of foreclosure and sale (which is what allows a foreclosure sale to be conducted) cannot be awarded unless a valid notice of pendency (lis pendens) has been on file with the court at least 20 days before that judgment is rendered.  This seems to be a mere mechanical step – and it is – except that case law generally in New York says that if a lis pendens expires (it has a life of 3 years) it cannot be filed again.

So what happens when a lis pendens is filed at the beginning of a foreclosure action (the wise choice) and the action is heavily litigated or otherwise delayed (perhaps a lengthy forbearance period) so that the lis pendens expires without having been extended before it ran out?  This does happen.

If a lis pendens cannot be refiled, but a foreclosure judgment cannot be obtained  without a new lis pendens, the foreclosure evaporates!  The answer to this bizarre and dangerous dilemma is that a foreclosure action is the exception to the rule that there can never be more than one lis pendens.    Case law traditionally made this vital point.

But then cases became confused – too long a story to relate here – and some foreclosures were lost as a result.  So, to resolve the confusion once and for all a new law was passed effective August 2, 2005 adding a provision (CPLR §6516) which clearly authorizes a successive lis pendens in a mortgage (or tax lien) foreclosure action.

This should avoid the disarray of the past and be a help to mortgage and tax lien holders.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2017), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, 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.