After successfully prosecuting a foreclosure action and obtaining summary judgment in favor of its client, Adam Leitman Bailey, P.C. brought a motion for judgment of foreclosure and sale – the last and what should be the simplest step in the foreclosure process before a lender can auction a mortgaged property.  However, borrowers often engage in various delay tactics to prolong the foreclosure process.  This case was no different.   

Here, Adam Leitman Bailey, P.C. filed its motion for judgment of foreclosure and sale with a statement pursuant to CPLR 2214(b) requiring that opposition papers be served at least seven days before the return date so as to ensure the right to reply and address any potential misstatements of law or fact made by the borrower in an effort to dissuade the Court from entering judgment against her. However, despite getting an extension of time from the Court, the borrower completely disregarded her deadline and late-filed opposition papers after the close of business on the return date of the motion, thus preventing Adam Leitman Bailey, P.C. from filing a reply to address the borrower’s meritless arguments in opposition to the motion.  As a result, Adam Leitman Bailey, P.C. filed a statement of rejection of the borrower’s late-filed papers and requested that the Court refuse to consider her opposition. 

Instead of disregarding the borrower’s opposition or adjourning the motion to allow Adam Leitman Bailey, P.C. an opportunity to reply, the Court inappropriately denied Adam Leitman Bailey, P.C.’s motion solely based on misrepresentations made by the borrower in her late-filed opposition, to which Adam Leitman Bailey, P.C. was not afforded the right to reply, despite its diligence.   

Specifically, the entire basis for denial of the motion was the borrower’s entirely incorrect argument that Adam Leitman Bailey, P.C. purportedly failed to comply with the Court’s directive that plaintiff “provide the referee and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order [and computing the amounts due and owing to plaintiff that were to be included in the judgment of foreclosure and sale].”  Adam Leitman Bailey, P.C. did, however, serve the borrower with all such papers. And because Adam Leitman Bailey, P.C. is fully familiar with these meritless arguments made by borrowers to delay the foreclosure process, as a matter of course, Adam Leitman Bailey, P.C. always maintains affidavits of service and proofs of delivery from UPS, confirming all required papers are served in accordance with the Court’s orders.   

Adam Leitman Bailey, P.C. was therefore able to quickly jump into action and bring a motion to reargue the denial of its motion for judgment of foreclosure and sale.  In that motion, Adam Leitman Bailey, P.C. pointed to controlling case law that provides reargument is appropriate when a moving party is deprived of its right to address arguments and/or misstatements of fact on reply, as was the case here.  Then, Adam Leitman Bailey, P.C. provided the Court with all documentation it maintained in its possession to demonstrate that it fully complied with the Court’s order and served the borrower with all of the documentation provided to the court-appointed referee to compute the amounts due and owing to the plaintiff for the judgment of foreclosure and sale. 

Recognizing its error in originally denying Adam Leitman Bailey, P.C.’s first motion based on meritless arguments made in the borrower’s late-filed opposition, the Court granted Adam Leitman Bailey, P.C.’s motion to reargue, and upon reargument, granted the foreclosing lender judgment of foreclosure and sale.  

Adam Leitman Bailey, P.C.’s foreclosure expertise and record keeping diligence allowed it to achieve a favorable result for its client. 

Jackie Halpern Weinstein, Esq., and Courtney J. Lerias, Esq., of the Foreclosure Litigation Group at Adam Leitman Bailey, P.C. successfully prevented this borrower from delaying its client from exercising its rights.