CPLR 3215(c) requires a plaintiff to take proceedings for entry of judgment within one year of default or face dismissal of the action as abandoned, except where sufficient cause is shown why the complaint should not be dismissed.  The purpose of this provision is to prevent a plaintiff from taking advantage of a defendant’s default where the plaintiff has also been guilty of inaction.  See Myers v. Slutsky, 139 A.D.3d 2d 709 (2d Dep’t 2012).…

Prior to the enactment of Real Property Actions and Proceeding Law (“RPAPL”) § 1302-a, defendants waived their affirmative defense of standing in a residential foreclosure action by failing to raise that defense in an answer or a pre-answer motion to dismiss.  See, e.g., JP Morgan Chase Bank, Nat’l Ass’n v. Butler, 129 A.D.3d 777, 780 (2d Dep’t 2015).  However, since the enactment of RPAPL § 1302-a, which became effective on December 23, 2019, defendants can…

In JPMorgan Chase Bank, N.A. v Caliguri, 36 N.Y.3d 953 (2020), the Court of Appeals recently clarified how a lender establishes standing in a foreclosure action.  Prior to this recent pronouncement, the standard set by that Court had been that a plaintiff evidences standing to foreclose by demonstrating that it possessed the original note agreement at commencement of the foreclosure action.  Aurora Loan Servs., LLC. v. Taylor, 25 N.Y.3d 355 (2015).  In Aurora, the lender…

The Appellate Division, Third Department recently issued a decision in Citimortgage, Inc. v Ramirez, ___AD3d___, 2020 NY Slip Op 07970 (2020) (“Ramirez“), concerning the plaintiff lender’s appeal from the Supreme Court’s dismissal of an action for recovery on a note, where plaintiff’s two prior foreclosures had already been dismissed. In its decision reversing dismissal, the Third Department held that when a lender accelerates a mortgage debt and elects to commence a foreclosure of the mortgage,…

In a case of appellate first impression in New York, the Appellate Division, Second Department, held that a mortgagor cannot make a Real Property Actions and Proceedings Law (“RPAPL”) 1304 argument in opposition to a motion for Judgment of Foreclosure and Sale – even if that was pled as a defense in the mortgagor’s Answer – where the prior summary judgment motion was unopposed. In Wells Fargo Bank, N.A. v. Harrigan,[1] after the lender…

In Curiale v. Hyundai Capital America, Inc., No. A-5565-18T3 (N.J. Sup. Ct. App. Div. Apr. 27, 2020), a two-judge panel of the New Jersey Superior Court, Appellate Division, reversed a trial court order denying Defendant Hyundai Capital America, Inc.’s (“Defendant”) application to compel arbitration against Plaintiffs Christopher D. Curiale and Jerome C. Curiale (“Plaintiffs”).  The Appellate Division held that the Defendant, as an assignee of a lease, could enforce an arbitration provision and class-action waiver…

The Second Circuit of United States Court of Appeals in Duran v. La boom Disco, Inc. (“Duran”), broke from the majority position from the Third, Seventh, and Eleventh Circuits and found that a dialing system that called from a stored list of numbers qualified as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). In doing so, the Second Circuit joins the Ninth Circuit in adopting a broad interpretation of what…