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After Discovering New Evidence in an Action to Discharge a Client’s Mortgage on the Eve of Trial, Adam Leitman Bailey, P.C. Succeeds in Obtaining Court Permission to Amend the Bank’s Answer and Assert New Defenses

By Courtney J. Lerias


The plaintiff commenced an action against the defendant bank, pursuant to RPAPL Article 15, seeking to discharge the mortgage encumbering a piece of property in Queens County on the grounds that the statute of limitations on its enforceability had expired. After years of motion practice and discovery, the plaintiff filed a Note of Issue and certified that the case was ready for trial. The prospect of trial was ominous and the bank was looking at a more than $1 million loss.

The bank turned to Adam Leitman Bailey, P.C. for support. After taking control of the case, the ALBPC team determined that the deed conveying the property to the plaintiff was forged – the person who supposedly notarized the signatures on the deed had been dead for over ten years when the deed was executed. This discovery gave the bank new life and a new shot at success: if the plaintiff was not the owner of the property, it did not have standing to seek to have the subject mortgage discharged.

With trial imminent, the attorneys at ALBPC worked quickly to prepare a motion to the court, seeking to: (a) vacate the Note of Issue, remove the case from the Court’s trial calendar, and re-open discovery in the matter; and (b) permit the defendant bank to amend its answer to: (i) assert affirmative defenses of forgery and lack of standing; (ii) assert a new counterclaim to quiet title pursuant to RPAPL Article 15; and (iii) assert an amended counterclaim and join new parties to foreclose upon the subject mortgage.

The plaintiff opposed the motion, making various technical arguments, but never addressing or denying the issue at hand – that its deed had the stamp of a notary that had been deceased for over ten years prior to the deed’s execution. After observing that the dead notary was a “silver bullet,” the judge agreed with Adam Leitman Bailey, P.C. and entered an order striking the matter from the court’s trial calendar and permitting the defendant bank to amend its answer to assert a new defense to this action, and new counterclaims.

Courtney J. Lerias, Esq. and two other attorneys represented Adam Leitman Bailey, P.C. on this matter.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS