Nationstar Mortgage LLC v. Dunn, 2024 NY Slip Op 04562 (Justin P. Robinson, Esq. – Of Counsel for Respondent, Nationstar Mortgage, LLC)

Facts: In this case the plaintiff commenced this action against the defendant, among others, to foreclose a mortgage on certain real property. Judgment of foreclosure and sale was granted by Trial Court Order dated September 5, 2017. Defendant appealed from the Order and Judgment of foreclosure and sale. A foreclosure sale of the subject property was scheduled to be held on March 10, 2022. By order to show cause, defendant moved to stay the foreclosure sale based on, inter alia, the plaintiff’s alleged failure to comply with RPAPL § 1351(1). Here, the order and judgment of foreclosure and sale failed to include the language required by RPAPL 1351(1). The Supreme Court signed the order to show cause on March 9, 2022, which included a temporary restraining order staying the foreclosure sale. The plaintiff opposed the motion which the Trial Court denied by Order dated April 12, 2022.

Rule: “RPAPL § 1351(1) was amended, effective December 20, 2016, to provide that a judgment of foreclosure and sale shall direct that the subject property be sold ‘within ninety days of the date of the judgment’” (U.S. Bank, N.A. v Peralta, 191 AD3d 924, 925; see Bank of N.Y. Mellon v Ramsamooj, 219 AD3d 1402, 1403). Furthermore, a court may grant sua sponte relief to a party pursuant to CPLR § 2004 where, as here, it is faced with a procedural irregularity as opposed to a jurisdictional defect in the context of a mortgage foreclosure action (see e.g. Wells Fargo Bank, N.A. v Welz, 211 AD3d 1083, 1084.”

Conclusion: The Appellate Court ultimately held that failure to include the language “within ninety days of the date of judgment” was not fatal because Plaintiff was still bound by the 90 day timeframe regardless of whether the language was in the Order and Judgment of foreclosure and sale. Further, that the Trial Court was well within its discretion under CPLR § 2004 to sua sponte extend Plaintiff’s time for sale. 

Sources

Nationstar Mortgage v. Dunn, 2024 NY Slip Op 04562 (Second Department Appellate Division)