Our clients, the Boards of Managers of condominiums, often find themselves in the precarious situation of having a unit owner that is failing to pay common charges despite numerous notifications of the default and are therefore forced to file liens on the units and bring a foreclosure action against the unit. And, because of the reticent status of the judiciary in foreclosure actions and the detailed technical requirements of the foreclosure laws that can be used as ammunition not only by the unit owners but by the court itself to defeat such an action, obtaining judgment can be a difficult and time consuming task. However, given Adam Leitman Bailey’s extensive experience with both bank and common charge foreclosures, this problem is not as daunting as it seems. In fact, our firm successfully obtained default judgment in three common charges cases just this month.
In each case, the attorneys at Adam Leitman Bailey, PC began with filing a Notice of Lien that complied with the dictates of New York Real Property Law §339-aa. Upon filing of the Notice of Lien, our office sent a copy of the lien to the respective unit owner with a notice that an action would be brought against him or her should the default in payment of common charges not be cured within thirty days. After the passage of thirty days, the attorneys drafted a Summons and Complaint that complied with all of the requirements of the New York Real Property Actions and Proceedings Law, including the notice requirements of New York Real Property Actions and Proceedings Law §1303. Specifically, §1303 requires that a notice (in bold, 14 point type and the title in 20 point type, and printed on colored paper), accompany the summons and complaint and contain the statutorily required details about sources of information and assistance for the unit owner.
After each unit owner’s time to answer the foreclosure complaint or otherwise appear in the action had expired, Adam Leitman Bailey, P.C. promptly moved for default. Aware of the difficulty in obtaining a default judgment in a foreclosure action, the attorneys at Adam Leitman Bailey, PC, included several additional documents in their motions to safeguard against a denial of the motion on procedural grounds. First, an attorney affirmation was included stating that the requirements of New York Real Property Actions and Proceedings Law §1303 were met by including the notice, in the requisite font and on the colored paper, in each and every copy of the summons and complaint provided to the process server. Second, an additional attorney affirmation was included that stated the action complied with all of the additional requirements of the New York Real Property Actions and Proceedings Law and Civil Practice Laws and Rules applicable to foreclosure actions on liens for unpaid common charges. And lastly, a client affidavit accompanied the default motion, detailing the amounts owed and all the failed previous attempts to collect the outstanding amount.
Even in the face of the judicial system’s reluctance to grant default judgment in these types of cases, due to attention to detail and compliance with the very specific requirements of the New York Real Property Actions and Proceedings Law, as well as the New York Real Property Law in foreclosure actions, Adam Leitman Bailey, P.C. has been successful in obtaining judgment for its clients.
Dov Treiman, Courtney J. Lerias and Vladimir Mironenko represented Adam Leitman Bailey P.C. on the motion.