Adam Leitman Bailey, P.C. Defeats Application for Stay Pending Appeal, Defeats Renewal Motion, and is Awarded Judgment Of Foreclosure and Sale
In a foreclosure action being repeatedly delayed by the tactics of the Borrower, Adam Leitman Bailey, P.C. was retained to change in as counsel for Plaintiff and aggressively complete the action to a Judgment of Foreclosure and Sale.
The 2015 action was originally dismissed in 2018 for Plaintiff’s failure to timely move for the appointment of a referee. The Court later granted Plaintiff’s motion to vacate the dismissal, for summary judgment, and to appoint a referee. Defendant in opposition to that motion argued that Plaintiff failed to serve the pre-foreclosure notices required by the Mortgage and by RPAPL § 1304. The Court determined that the affidavit in support sufficiently proved compliance with the pre-foreclosure notices.
Adam Leitman Bailey, P.C. moved for Judgment of Foreclosure and Sale, in response to which the Borrower not only opposed, but also cross-moved for a stay pending appeal. The Borrower re-raised the arguments regarding the pre-foreclosure notices required by the Mortgage and RPAPL § 1304, and, in another delay attempt, argued that there needed to be a referee’s hearing to determine the amount due.
In opposition and reply, Adam Leitman Bailey, P.C. argued that there was no basis to stay the action pending appeal due to the vacatur of the 2018 dismissal because the Borrower failed to oppose that portion of the prior motion and is now estopped from raising that argument on appeal. Moreover, Adam Leitman Bailey, P.C. argued that sufficient proof was submitted in support of compliance with the pre-foreclosure notices required by the Mortgage and RPAPL § 1304. Regarding the demand for a Referee’s hearing, Adam Leitman Bailey, P.C. was clear that correspondence was diligently sent to the Borrower’s counsel inviting them to review the proposed Referee’s Report and advise if there were any challenges to it, and that the Borrower failed to respond with any objections.
Before the Court could issue a decision on the motion and cross-motion, the Borrower also filed a renewal motion arguing that there was a change of law with respect to the RPAPL § 1304 notices that should have changed the decision on the prior vacate and summary judgment motion granted in favor of Plaintiff. In opposition, Adam Leitman Bailey, P.C. argued that there was no change in the law, but rather new decisions interpreting it.
The Court simultaneously issued decisions on both motion sequences fully adopting all of Adam Leitman Bailey, P.C.’s arguments. The Court determined that there was not a change of law, and that, regardless, Plaintiff complied with the pre-foreclosure notices. The Court denied the stay request and granted Judgment of Foreclosure and Sale in favor of Plaintiff.