Points that make or break a Lyceum Future...
Body blow of 2012
When it seemed clear from the law, case law and the facts, that the foreclosure was abandoned, a motion was made to dismiss a foreclosure in its entirety under a law that specifically detailed how, and when, the court must dismiss a case as abandoned. That law is CPLR 3215(c)
Put quite simply, the defendant has a certain amount of time to answer. Once that time to answer has expired (the Defendant has"defaulted"), the Plaintiff has one year to take some action, any action, towards a judgment of default (a decision that the defendant's time to answer had expired).
Such an action takes the form of a "Motion for default judgment and order of reference". Such a motion need not be presented to the defaulting defendant --UNLESS-- they have participated in some substantive form, that they have "appeared". If a defendant has participated/appeared, the motion must be presented to the defendant in advance, with some notice, as motions without notice never invoke the power of the court. Any decisions based on motions without notice are, void, not just voidable. That means, despite their presence on a piece of paper that may be filed with the court, such violations of statute, an jurisdiction, never have any validity and no entity is ever allowed to benefit from such a decision or act of the court.
In addition, the motion must be supported (include) a sworn under the penalty of perjury affidavit that the defendant had not appeared or interposed an answer.
The court was presented with such a motion supported by such an affidavit and the court issued a judgment of default.
After getting a Judgment of default, the Plaintiff went for the jugular, it sought, again by motion and notice and affidavit, a "judgment of foreclosure and sale".
On ??,??? Plaintiff was noticed of a motion under CPLR 3215c to dismiss the case.
On October 24, 2012, that motion was heard by the court. At that hearing the judge instructed the Plaintiff it had until ??? to present opposition to the motion and Defendant was given time to reply to the Plaintiff response.
Two days later, on October 26, 2012, the Judgment of Default was signed by the same judge and entered. That is, the judge knew full well that a challenge to the jurisdiction was present yet he proceeded prior to dealing with the challenge to the jurisdiction.
Plaintiff put in response to motion to dismiss as abandoned. Those papers included an affidavit from the former counsel for the Plaintiff (one since suspended from the practice of law for not being forthcoming to the disciplinary committee). That affidavit supported the necessary justification ("sufficient cause") to show the court how , in effect, a year since default had not actually passed as there were extensions of time given to the Defendant, undocumented extensions of time. The affidavit did, however, detail how defendant had actually appeared prior to the motion for default, a motion supported by an affidavit from said attorney that no defendant had appeared or interposed an answer.
Defendant put in a response to the Plaintiff's opposition stating that the "sufficient cause" put forth by the now suspended attorney, did not meet the threshold of decades of case law, that contested and unsubstantiated assertions by an attorney have no use.
Court then put in a decision refusing to dismiss thecase as abandoned because :
- Defendant waited too long citing caselaw : Fuentes v. Virgil
- Defendant participated too much citing caselaw : ????
- That Plaintiff has shown "sufficient cause" why the time to answer had been extended by acts of one or both parties.
- An extension of time to answer signed by defendant only.
- An extension of time signed by no one which is contested by Defendant.
- "Multiple oral extensions of time to answer" to which there are no records and which is contested by Defendant.
That decision was appealed on January ??, 2013, was fully briefed on ???? and was, after dome 30 months, argued orally before the Appellate Division, Second Department on September 6, 2018.
Video HERE : ____________