HSBC Bank USA, National Association v Parris
Categories
Attorneys and Parties
Brief Summary
Mortgage foreclosure procedure and enforcement of local filing deadlines after entry of an order of reference.
The Supreme Court, Kings County, granted the plaintiff's motion for a judgment of foreclosure and sale and denied Hugh Parris's cross-motion to dismiss the complaint insofar as asserted against him.
The Appellate Division reversed the order and judgment of foreclosure and sale, denied the plaintiff's motion, granted Parris's cross-motion, and dismissed the complaint insofar as asserted against him.
The plaintiff failed to move for a judgment of foreclosure and sale within one year after entry of the order of reference as required by Kings County Supreme Court Uniform Civil Term Rules, Part F, Rule 7 [requires a foreclosure plaintiff to apply for a judgment of foreclosure and sale within one year after the order of reference, suspends that period upon filing a forbearance or settlement agreement, and states that noncompliance results in automatic dismissal], and the excuses offered for the delay were not reasonable.
Background
In this mortgage foreclosure action, the plaintiff obtained an order of reference on August 24, 2016. It did not move for a judgment of foreclosure and sale until December 2017, more than one year later. Hugh Parris cross-moved to dismiss the complaint insofar as asserted against him under Kings County Supreme Court Uniform Civil Term Rules, Part F, Rule 7, arguing that the plaintiff missed the one-year deadline. In opposing dismissal, the plaintiff claimed delay in preparing and collecting documents for the referee's oath and report and also referred to issues involving the notice of pendency and an updated title report.
Lower Court Decision
The Supreme Court accepted the plaintiff's explanations for the delay, granted the plaintiff's motion for a judgment of foreclosure and sale, denied Parris's cross-motion to dismiss, and directed the sale of the property.
Appellate Division Reversal
The Appellate Division held that the Supreme Court improvidently exercised its discretion in accepting the plaintiff's excuses. The appellate court found the claimed delay in assembling documents and proofs was too vague because the plaintiff did not explain what specific documents caused the delay, why this case was atypical, or how long the delay lasted. The court also rejected the notice of pendency explanation because the renewal notice had been filed on July 9, 2015, more than a year before the August 24, 2016 order of reference, so it could not explain the later delay in moving for a judgment of foreclosure and sale. Because no reasonable excuse was shown, the court denied the plaintiff's motion, granted Parris's cross-motion, and dismissed the complaint insofar as asserted against him.
Legal Significance
The decision reinforces that foreclosure plaintiffs in Kings County must strictly comply with the one-year deadline in Kings County Supreme Court Uniform Civil Term Rules, Part F, Rule 7 or provide a concrete, fact-specific, reasonable excuse. General references to document collection problems or administrative issues will not suffice. The ruling also confirms that appellate courts will reverse where a trial court accepts unsupported excuses for missing the deadline.
In a Kings County foreclosure case, a plaintiff that waits more than one year after the order of reference to seek a judgment of foreclosure and sale risks dismissal unless it can present a detailed and credible reason for the delay.