Two Lessons: Borrower Loses Motion To Dismiss; Lender is Sanctioned


1 February, 2013


Mortgage Lender and Servicer Alerts

A new case which catches our attention is an odd confluence of two events:  a defaulting borrower’s motion to dismiss is denied for lateness, but the lender was sanctioned for misstatements to the court. [U.S. Bank Nat. Ass’n v. Gonzalez, 99 A.D.3d 694, 952 N.Y.S.2d 59 (2nd Dept. 2012)].

First, as to a motion to dismiss, a defendant can make such a motion – even before it is required to answer the complaint — but it must do so no later than its time to answer expires.  The courts generally, however, tend to be very liberal with time limits.  If a party is late with an answer or a motion or a response, the courts are overwhelmingly acceptable to such tardiness.  That is another subject, but the point is that time limit rules are most often only honored in the breach.

Here, though, the defendant borrower would have to have made his motion to dismiss thirty days after March 6, 2009.  But he did not submit the motion until October 21, 2009 (this is pursuant to CPLR §3211) seeking to dismiss the complaint.  (He also moved for sanctions against the plaintiff pursuant to 22 NYCRR 130-1.1.)

Having not requested an extension of time to make the motion to dismiss, and offering no good cause excuse for his delay in making that motion to dismiss – indeed, he didn’t even address the untimeliness of the motion – the court should not have accepted such a motion.  The trial court did, but again, on appeal, there was a reversal.  The borrower was defeated here (at the cost of an appeal to the plaintiff and the time that involved).

Not only do courts so often ignore many time limits, they only very rarely impose sanctions.  Foreclosing plaintiffs are often dismayed by the outrageous and baseless charges assessed by defaulting borrowers in mortgage foreclosure actions.  On some occasions, the foreclosing plaintiff is so exercised by the nonsensical responses, they seek sanctions against the borrower as a punishment for the abuse of assertions.  (The previously cited court rule supports such a procedure.)  Foreclosing plaintiffs’ attorneys, however, will confirm that such motions for sanctions are almost invariably futile and are hardly worth making.

In the new case, the motion for sanctions was by the borrower against the lender — and the borrower won.  The court found that the plaintiff had submitted various affirmations and affidavits in which it made a certain representation that proved to be false and then persisted in making that representation after it knew or should have known it was false.  Therefore, the trial court was affirmed in granting the imposition of sanctions upon the plaintiff (citing 22 NYCRR 130-1.1[c][3]; Schwab v. Philips 78 A.D.3d 1036, 1036-1037, 912 N.Y.S.2d 255).

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.