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RPAPL 1351(1) Requires a Foreclosure Sale to Occur Within Ninety Days of the Date of the Judgment of Foreclosure and Sale

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  • Posted on: Mar 31 2023

By Jonathan H. Freiberger

While this Blog has addressed numerous issues relating to residential mortgage foreclosure, it has never touched upon the requirement in RPAPL 1351(1) that a judgment of foreclosure and sale “shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action, and which may be sold separately without material injury to the parties interested, be sold by or under the direction of the sheriff of the county, or a referee within ninety days of the date of the judgment.” (Emphasis added.)

In U.S. Bank, N.A. v. Peralta, 191 A.D.3d 924 (2nd Dep’t 2021), the Court recognized that “RPAPL 1351(1) was amended, effective December 20, 2016, to provide” for the 90-day language previously quoted.  Peralta, 191 A.D.3d at 925.  In Peralta, borrower sought to have the foreclosure action dismissed “for failure to timely sell the premises” pursuant to RPAPL 1351(1).  Borrower’s efforts were rebuffed by the Court because “the judgment of foreclosure and sale was entered on January 29, 2015, 23 months before this provision came into effect, the judgment did not provide that the premises had to be sold within 90 days. Accordingly, there is no merit to Peralta’s contention that the sale of the premises was required to occur within 90 days of the date of the judgment, and, therefore, we need not consider what the proper remedy would be for failure to conduct a timely sale.”  Id.  See also Wells Fargo Bank N.A. v. Graziano, 192 A.D.3d 1192, 1193 (2nd Dep’t 2021) (“requirement that the judgment direct a sale within 90 days of the judgment is inapplicable” where it is issued “prior to the effective date of the amendment”).

In order to vacate a judgment of foreclosure and sale and/or set aside a sale because a sale did not occur within 90 days pursuant to RPAPL 1351(1), a borrower would have to show that “the delay of the foreclosure sale prejudiced a substantial right.”  Wells Fargo Bank, N.A. v. Singh, 204 A.D.3d 732, 734 (2nd Dep’t 2022).  The same is true if the statutorily required “ninety day” language is omitted from a judgment of foreclosure and sale.  Wells Fargo Bank, N.A. v. Malik, 203 A.D.3d 1110, 1112 (2nd Dep’t 2022) (“since the defendant does not allege that any substantial right of his was prejudiced by the omission of the statutory language from the judgment of foreclosure and sale, the Supreme Court properly declined to vacate the notice of sale on that ground”).

On March 29, 2023, the Appellate Division, Second Department, decided Bank of America, N.A. v. Cord, a case addressing, inter alia, RPAPL 1351(1).  The lender in Cord, commenced a mortgage foreclosure action in which a judgment of foreclosure and sale was entered.  In January of 2019, on borrower’s first appeal, the Second Department affirmed supreme court’s issuance of the judgment of foreclosure and sale.  The borrower then moved to stay the sale of the property scheduled for November of 2019, based on lender’s failure to comply with RPAPL 1351(1).  The lender “cross-moved pursuant to CPLR 2004 [which permits a court to ‘extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed’] for an extension of time to hold the foreclosure sale of the property.”  Borrower appealed from supreme court’s denial of borrower’s motion and granting of lender’s cross-motion.

The Second Department affirmed.  First, the Court noted that the judgment of foreclosure and sale failed to include the language required by RPAPL 1351(1).  However, borrower waived any objections to this omission that it may have had by neglecting to address the issue in his prior appeal from the judgment.  The Court added that “[t]o the extent that the plaintiff was nevertheless bound to comply with the time requirement set forth in RPAPL 1351(1), irrespective of whether the necessary language was included in the judgment of foreclosure and sale, under the circumstances, the Supreme Court providently exercised its discretion in granting the [lender]’s cross-motion pursuant to CPLR 2004 for an extension of time to hold the foreclosure sale.”  While noting that statutory deadlines are to be “taken seriously”, the Court also recognized that CPLR 2004 permits a court to extend deadlines under certain circumstances and, when exercising such discretion, “a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion”.  

Similarly, the Court stated that “CPLR 5019(a) provides that ‘[a] judgment or order shall not be stayed, impaired or affected by any mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party.”  (Citations and internal quotation marks omitted, hyperlink added.)

Applying the facts to the law, the Court stated:

Here, there was more than a two-year delay between the issuance of the judgment of foreclosure and sale and the notice of the foreclosure sale of the property. The Supreme Court determined that the delay, due to the defendant’s prior appeal from the judgment of foreclosure and sale and a motion by the referee for supplemental fees, was reasonable and that the plaintiff demonstrated good cause for an extension of time in which to hold the foreclosure sale of the property. The court also found that the defendant failed to establish that the delay caused any prejudice to him. The court’s findings are supported by the record, and thus, the court providently exercised its discretion in granting the plaintiff’s cross-motion.  [Citations omitted.]

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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