Guileful Borrower: “Transfer Case To Judge Who Ruled In My Favor”


1 July, 2019


Mortgage Lender and Servicer Alerts

This is not a snarky criticism.  Litigants seek all the advantages they can get, lenders and borrowers both – but this one was just a bit too cute – see recent case on point: JPMorgan Chase Bank, N.A. v. Caliguri, 163 A.D.3d 819, 92 N.Y.S.3d 95 (2d Dept. 2019)

We can be candid. It is recognized that some judges tend generally to favor a lender’s position, some a borrower’s posture.  Judges are after all, only human.  And such views are recognized in the legal community.   It does not mean these courts are unfair, it just suggests tendencies of which litigants might wish to avail themselves if they have the chance.

Lenders would not be aware of this (it’s simply a matter of practice in New York) but when a particular paper is filed earlier on in a case called the Request for Judicial Intervention (RJI), the party filing it is obliged to recite whether there is any related case.  The assumption is that if there happens to be a related case, the system might assign this new case to that same judge.  There are certainly rational reasons to do that.  But is it mandated?  That was the issue in the recent case mentioned.

In this case, there had been a mortgage foreclosure action in which a particular judge had granted the borrower’s motion for summary judgment dismissing the complaint in the foreclosure on the ground that the plaintiff had no standing and had neglected to comply with discovery demands.  Thereafter, the plaintiff commenced the second foreclosure – this recent case – and moved for summary judgment to strike the inevitable borrower’s answer.  Meanwhile, in addition to other thrusts, the borrower moved to transfer the action to the justice who had heard the prior foreclosure action and, of course, had favored the borrower and dismissed that action.

Did the borrower get its way?  No.  Rather, the court ruled that:

–          The Uniform Rules for Trial Courts do not address the issue of whether related cases should be assigned to the same judge.

–           There is no requirement that related cases be heard by the same judge.

–           In addition, because the prior foreclosure action was no longer pending, there existed no potential for any conflicting ruling (and thus no compunction to assign to that earlier judge).

In sum, it was a proper exercise of discretion for the court to deny the borrower’s motion (pursuant to 22 N.Y.C.R.R. 202.3(a)) to transfer the action to the justice who heard the prior foreclosure case.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2019), 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.