A New York appellate court has ruled on a significant mortgage foreclosure case involving NewRez, LLC, and defendants Peretz and Pesel Feder. The Appellate Division of the Supreme Court of New York affirmed a lower court's decision that denied the Feder defendants' request to dismiss the case as abandoned. This ruling is crucial for both parties as it allows the foreclosure process to continue.
The case, NewRez, LLC v. Shannon, was filed under docket number 2024-07049 and centers around the foreclosure of a mortgage on real property located in Kings County. The court's decision impacts the Feder defendants, who argued that the case should be dismissed due to a lack of timely action by the plaintiff, NewRez, LLC, the successor to Everhome Mortgage Company.
Background
The dispute began in May 2005 when Everhome Mortgage Company initiated foreclosure proceedings against the Feder defendants. The defendants failed to respond to the initial complaint in a timely manner. In November 2006, Everhome sought a default judgment against all defendants, which the court granted in early 2007.
In November 2013, Everhome attempted to move forward with a judgment of foreclosure and sale. The Feder defendants contested this motion, claiming they had not been properly served with the summons and complaint. The court initially sided with the Feder defendants and dismissed the action. However, Everhome appealed, and the appellate court reversed the dismissal, sending the case back to the lower court for further review.
Fast forward to August 2022, when Everhome sought to restore the action to the court calendar and appoint a substitute referee. The Feder defendants opposed this motion but did not file a request to dismiss the case based on abandonment at that time.
The Ruling
On December 21, 2023, the Supreme Court of Kings County denied the Feder defendants' cross-motion to dismiss the complaint as abandoned. The Feder defendants argued that Everhome had not taken necessary steps to secure a default judgment within one year of their default. However, the court found that the Feder defendants had effectively waived their right to seek dismissal by participating in previous motions without requesting dismissal.
The court ruled, "A defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance."
The appellate court upheld this ruling, stating that the Feder defendants had indeed waived their right to seek dismissal by opposing Everhome's motions in the past. The judges on the panel included Francesca E. Connolly, Linda Christopher, Lillian Wan, and Susan Quirk.
Impact
This ruling has significant implications for the Feder defendants and the foreclosure process. By affirming the lower court's decision, the appellate court allows NewRez, LLC to proceed with its foreclosure action. This case highlights the importance of timely responses in legal proceedings, especially in foreclosure cases where delays can lead to severe consequences for property owners.
The ruling also reinforces the principle that defendants can lose their right to seek dismissal if they engage in the legal process without formally contesting the complaint. This may serve as a cautionary tale for other defendants in similar situations, emphasizing the need for prompt and decisive action in legal matters.
What's Next
The Feder defendants can still appeal this decision to a higher court if they choose. However, details about any related cases or further actions were not available in the court filing.