Underlying the whole mortgage foreclosure process is the invariable actuality that a borrower defaulted in making payments that were due, either installments or the full balance on maturity. Yes, sometimes the case is the result of some other default, and on rare occasions there is a genuine issue about whether there was a default at all. But overwhelmingly, the borrower did default, so that lenders’ view of the action is infused with the thought that the foreclosure ought to be able to proceed without serious issue or undue delay.
Putting aside for this discussion the reality that foreclosures have so many technical and procedural aspects that proceeding with dispatch is often not readily available, lenders will typically be dismayed when they are defeated, for example upon a motion for summary judgment. Recall that this is the stage where the foreclosing party endeavors to dispose of the answer (which the lender will deem baseless) which in the meanwhile holds up the process until that answer can be banished.
What then is the lender to do? Simply making a successive motion for summary judgment is typically not available (although there are exceptions to that, too obscure to be a part of this discussion). The other alternatives are either to re-argue or renew.
Re-argument is the posture that the court has misapprehended the law or the facts of the case and therefore, issued an erroneous decision. This certainly can happen and whether a re-argument motion is worth the effort or not is something for the lender to review with its counsel.
The other alternative – the focus of this excursion – is the motion to renew. This is certainly one way to bring the issue anew to the court’s attention. This, though, leads to the critical thought that it behooves the lender to supply to its counsel at the outset all the relevant information needed for the motion, and counsel should be aware of precisely what that information is so it can be requested if not initially offered. As a recent case advises yet again in this arena [see HSBC Bank USA N.A. v. Nemorin, 167 A.D.3d 855, 90 N.Y.S. 3d 270 (2d Dept. 2018)], a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the initial determination. In addition, the motion to renew must contain reasonable justification for the failure to present such facts on the prior motion.
Thus, a motion for leave to renew cannot be considered as a second chance readily provided to a party who has not exercised due diligence in the first instance in making the initial factual presentation.
In fact, the trial court lacks discretion to grant renewal where the moving party has omitted reasonable justification for failing to present the new facts on the original motion.
So the message here should be clear. If there was something important that the court needed to grant summary judgment in favor of a foreclosing lender, it had to be presented upon the motion for summary judgment. Coming forward after having lost the motion with new information that was previously available, will not be a successful path.
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.