Sale on Older Foreclosure Judgment To Be Held Within 90 Days?
In his Foreclosure Litigation column, Bruce Bergman discusses the timing issue surrounding a foreclosing plaintiff proceeding to sale and concludes: “It appears that a pre-amendment foreclosure judgment does not require a foreclosure sale within 90 days. While an uncertain or timorous plaintiff might err on the side of caution and seek such an order to avoid any chance of contention, such appears to be unnecessary and wasteful of time and expense.”
May 28, 2019 at 01:45 PM
7 minute read
Although surprising to many, unlike money judgments, a judgment of foreclosure and sale (which is not a money judgment [FN1]) always had an eternal life. (For a more complete explanation, see “The Consequences of Sitting on a Foreclosure Judgment,” NYLJ, May 13, 2015, at 5, col. 2.) While there are reasons why a foreclosing plaintiff would usually wish to proceed to sale with some dispatch after obtaining the judgment of foreclosure and sale, there are any number of circumstances (pursuit of settlement being one of them) under which the plaintiff would refrain. And for the very reason that the efficacy of the judgment had no termination date, there was historically no obligation to set the sale at any precise moment (other than applicable publication requirements).
That one might be incredulous at the apparently endless life of a foreclosure judgment is confirmed by a decision where a foreclosure judgment, vintage 2002, was being assaulted in 2015 with the argument that it was inefficacious for want of renewal. On this point, the court ruled that its research revealed no applicable law limiting the period within which a foreclosing plaintiff may sell the mortgaged property after entry of the judgment of foreclosure and sale. (Bank of New York as Trustee Under the Pooling and Servicing Agreement Series 1999-F v. Odzer, 2996/02, NYLJ 1202715494627, at 1 (Sup., Na., Decided Jan. 5, 2015.))
And this is a meaningful point: the foreclosure judgment goes on and on, except as it might be affected by legislation circa 2016.
New Statute and Issues
Effective as of Dec. 20, 2016, however, RPAPL §1351 was amended to mandate that
The judgment shall direct that the mortgaged premises…be sold…within ninety days of the date of the judgment. (emphasis supplied)
This created immediate burdens.
Aside from this presupposing that it is lenders who volitionally delay scheduling sales (a point strongly disputed, and typically not so), this fails to take into account the realities of the foreclosure process. First, a judgment is not available to a foreclosing plaintiff until it is entered. Depending upon the venue, this can be weeks or months after the date of the judgment. This immediately can render the 90-day sale date requirement unachievable regardless of the plaintiff's dedication to proceeding apace. With or without delay, there are any number of quotidian circumstances which can intercept the ability to promptly set a foreclosure sale (which requires at the outset 28 days' worth of advertising).
The referee's schedule may prohibit a rapid sale; he could be on trial, or on vacation and he might not schedule the date for months after it is preferred. Or, the referee may become ill or die, or may be appointed or elected a judge, or takes some other public office which precludes his services as a referee. This then requires a motion—the attendant time—to amend the judgment to appoint a different referee.
The newspaper in which the advertisement is to be placed goes out of business; it happens, and then requires a motion to amend the judgment which consumes time. Then too, settlement discussions can postpone the settling of a sale so that a rapid sale date will tend to chill post-judgment settlement discussions. Finally, a borrower's order to show cause (with a stay) or bankruptcy filing can readily stay any ability to schedule a sale.
In sum, while speeding to a sale may be welcome, and overwhelmingly already the desire of plaintiffs, imposing a requirement to hold a sale within 90 days of the date of the judgment will often be unachievable, will create confusion and foment assaults on sales which would not have a reasonable or legitimate basis.
What About Pre-Amendment Judgments?
Experience suggests prevailing wisdom accepts that whenever a judgment becomes stale—some time 90 days after signing or entry—court permission in some form is needed to efficaciously conduct a foreclosure sale. Indeed, court clerks (where involved) in some venues will not accept the sale without further court blessing. Recalling the language of the statute as amended, however, the first part of the mandate is that the judgment must direct the sale within 90 days. Therefore, there is no doubt where a post Dec. 20, 2016 judgment so recites, it would have to be honored. So where the sale pursuant to such judgment was delayed beyond 90 days, a motion to the court to authorize a sale anew pursuant to that judgment would be necessary.
Even for pre-amendment judgments, though, some practitioners had been seeking that same court authority. But the statute does not command that the sale for any foreclosure judgment must be conducted within 90 days. Rather, it decrees that a judgment of foreclosure and sale (as of the effective date of the amendment) must require that the sale be held within that constrained period. A judgment prior to the amended date, however, was not obliged to contain that recitation and undoubtedly would not have. (Always consult local rules for new or different strictures which may apply.[FN2])
Accordingly, this statute does not by its terms provide that these older judgments necessitate a sale within 90 days. In this regard, the general rule for retroactive application of a statute is that statutes are construed only as prospective, unless the language of the statute expressly or be necessary implication requires that it be given a retroactive construction. [Coffman v. Coffman, 68 A.D.2d 181, 400 N.Y.S.2d 833 (2d Dept. 1977)]. While remedial statutes will constitute an exception to the general rule about retroactivity, that would apply only if the statute does not impair vested rights. Rendering a judgment ineffectual would seem to do that very thing. In any event, remedial statutes are defined as those “designed to correct imperfections in prior law, by generally giving relief to the aggrieved party.” [Coffman v. Coffman, id].
Consulting the statute with care, and authority regarding retroactivity, it appears that a pre-amendment foreclosure judgment does not require a foreclosure sale within 90 days. While an uncertain or timorous plaintiff might err on the side of caution and seek such an order to avoid any chance of contention, such appears to be unnecessary and wasteful of time and expense.
Bruce J. Bergman is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City. He is the author of “Bergman on New York Mortgage Foreclosures” (four vols., LexisNexis Matthew Bender, rev. 2018)
ENDNOTES:
1. Citibank v. Cambel, 119 A.D.2d 720, 501 N.Y.S.2d 133 (2d Dept. 1986); Wyoming County Bank & Trust Co. v. Kiley, 75 A.D.2d 477, 430 N.Y.S.2d 900 (4th Dept. 1980); In Re Ellerstein, 105 B.R. 214 (W.D.N.Y. 1989). For further detail see 3 Bergman on New York Mortgage Foreclosures, §27.01[2], LexisNexis Matthew Bender (rev. 2018).
2. For example, there is a practical exception contained in a local rule confined to Kings County–Kings County Uniform Civil Term Rules, Part F, Rule 12, which provides: “Notices of Sale may be filed with the Clerk within one year of entry of the Judgment of Foreclosure and Sale. Permission of the court must be obtained for any filings thereafter.” This does not actually mean that a foreclosure judgment expires, just that a sale will not be countenanced in Kings County without further application. In a 2014 case, permission was granted where the delay in conducting the sale was elicited by borrower bankruptcy filings; See, Rossrock Fund II LP v. Toledo, 44329/07, NYLJ 1202715494163 at 1 (Sup. Ki., Decided Dec. 23, 2014.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllJudgment of Partition and Sale Vacated for Failure To Comply With Heirs Act: This Week in Scott Mollen’s Realty Law Digest
Tortious Interference With a Contract; Retaliatory Eviction Defense; Illegal Lockout: This Week in Scott Mollen’s Realty Law Digest
Court of Appeals Provides Comfort to Land Use Litigants Through the Relation Back Doctrine
8 minute readTrending Stories
- 1Inherent Diminished Value Damages Unavailable to 3rd-Party Claimants, Court Says
- 2Pa. Defense Firm Sued by Client Over Ex-Eagles Player's $43.5M Med Mal Win
- 3Losses Mount at Morris Manning, but Departing Ex-Chair Stays Bullish About His Old Firm's Future
- 4Zoom Faces Intellectual Property Suit Over AI-Based Augmented Video Conferencing
- 5Judge Grants TRO Blocking Federal Funding Freeze
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250