U.S. Bank National Association v Kotei
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Attorneys and Parties
Brief Summary
Mortgage foreclosure and the sufficiency of a successive notice of pendency filed before entry of a judgment of foreclosure and sale.
The Supreme Court, Kings County, denied the plaintiff's motion for a judgment of foreclosure and sale because it found the 2017 notice of pendency insufficient.
The Appellate Division reversed the order denying the plaintiff's motion and granted a judgment of foreclosure and sale.
In a foreclosure action, a plaintiff may file a successive notice of pendency under CPLR 6516(a) [allows a successive notice of pendency in a foreclosure action notwithstanding expiration of an earlier notice] to satisfy RPAPL 1331 [requires a plaintiff in a mortgage foreclosure action to file a notice of pendency at least 20 days before a final judgment directing a sale]. The 2017 notice adequately included the mortgage date, the county where the property was located, and recording information, and therefore sufficiently complied with statutory requirements.
Background
In September 2013, the plaintiff commenced a mortgage foreclosure action against Nii Badu Kotei and others concerning Brooklyn real property and filed a notice of pendency. In September 2017, the Supreme Court granted the plaintiff leave to enter a default judgment against the defendant and issued an order of reference. After the referee submitted a report in October 2017, the plaintiff filed a second notice of pendency in November 2017 and moved for a judgment of foreclosure and sale.
Lower Court Decision
The Supreme Court denied the motion for a judgment of foreclosure and sale on the ground that the 2017 notice of pendency was insufficient.
Appellate Division Reversal
The Appellate Division held that the Supreme Court should not have denied relief based on the 2017 notice of pendency. The court explained that under CPLR 6513 [a notice of pendency is valid for three years and may be extended for additional three-year periods for good cause shown], an expired notice becomes a nullity if not timely extended, but under CPLR 6516(a), a foreclosure plaintiff may still file a successive notice to comply with RPAPL 1331. Because this was a foreclosure action, the plaintiff was entitled to file the 2017 notice despite expiration of the earlier notice, and that notice sufficiently apprised the world of the risk to title. The court also noted that the defendant abandoned any appellate argument about the notice's sufficiency by not briefing it.
Legal Significance
This decision reinforces that in New York mortgage foreclosure actions, expiration of an earlier notice of pendency does not bar a lender from filing a new one to satisfy RPAPL 1331 before entry of a foreclosure judgment. It also confirms that substantial compliance with the required identifying information for the mortgage and recording data is enough where the notice adequately warns of a title risk.
A lender in a foreclosure case can file a successive notice of pendency before judgment even if an earlier notice expired, and a court should not deny a judgment of foreclosure and sale where the new notice sufficiently identifies the mortgage and recording information required by statute.