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January 02, 2024 | New York Law Journal

Acceleration (and Statute of Limitations): Stronger Than Death

"It is remarkable that nuances attendant to acceleration of a mortgage debt and the running of the statute of limitations continue to arise and surprise." The recent case discussed here confirms how often foreclosing parties lose on the statute of limitations issue, calling into question the need for the remedies of FAPA.
4 minute read
October 10, 2023 | New York Law Journal

Nuance in Mortgage Commerce: Yet Another Lender Failure With 30-Day Notice

Bruce Bergman discusses 'Wilmington Savings Fund Society, FSB v. Racer,' which deals with the "once believed innocuous 30-day notice requirement," and more specifically, when borrowers deny receipt, whether the foreclosing party can prove the notice was sent.
4 minute read
August 29, 2023 | New York Law Journal

Time, Settlement and the Foreclosure Abuse Prevention Act

A discussion of the Foreclosure Abuse Prevention Act, with particular focus on those provisions relating to a time-barred result and settlement considerations.
7 minute read
August 08, 2023 | New York Law Journal

Lenders Fail Again With the 90-Day Notice

While standing may be the most common defense in a residential foreclosure action, there should be little doubt that the RPAPL §1304 90-day pre-foreclosure notice mandate is surely the most insidious.
5 minute read
August 04, 2023 | New York Law Journal

First Case To Rule On the Foreclosure Abuse Prevention Act

Bruce Bergman discusses U.S. Bank National Association as Trustee v. Pierre, the first case to address the Foreclosure Abuse Prevention Act, specifically a single (but meaningful) portion of the Act: the six-month grace period to begin a new action.
3 minute read
Law Journal Press | Digital Book Georgia Construction Law Handbook 2024 Authors: T. BART GARY, JAKE CARROLL View this Book

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June 09, 2023 | New York Law Journal

Bidding a Nominal Sum at a Foreclosure Sale?

Can a lender safely bid a nominal sum at a foreclosure sale? Sure. But first a foreclosing party might ask why the question needs to be asked, and then why the answer is so tersely affirmative.
5 minute read
May 24, 2023 | New York Law Journal

Statute of Limitations for Strict Foreclosure

The running of the statute of limitations is assuredly a major and continuing problem for mortgage holders—typically encountered not surprisingly in the mortgage foreclosure action itself. That danger is exacerbated by the foreclosure abuse prevention act which denies to a foreclosing party the right to unilaterally withdraw an acceleration or cancel it by discontinuing the action. But the concept is not confined solely to that arena. Rather, it can apply to what might be seen as peripheral pursuits, for example, the strict foreclosure.
4 minute read
April 26, 2023 | New York Law Journal

When the Mortgage Holder Might Have To Pay the Receiver

A discussion of the "fact sensitive" instances where an appointing party may be constrained to pay the receiver's bills and/or commissions.
5 minute read
February 27, 2023 | New York Law Journal

Add'l Info in Pre-Foreclosure Notice OK –Kessler Doctrine Reversed

On Feb. 14, the Court of Appeals rendered an important decision in 'Bank of America, N.A. v. Kessler,' reversing the lower courts on the subject of pre-foreclosure notices.
5 minute read
January 03, 2023 | New York Law Journal

The Importance of the Voluntary Payment Doctrine in Foreclosures

In his Mortgage Foreclosure column, Bruce Bergman offers some basics on the subject of the voluntary payment doctrine which provides in short that when a sum is paid with full knowledge of the facts, and without protest, it is deemed voluntary and no later attack on the payment can succeed.
5 minute read

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