The Supreme Court of the State of New York, County of Westchester, recently held that the doctrine of res judicata bars a lender’s claim that a borrower’s subsequent transfers of property are void, if the claim is brought...more
The Second Department recently held in Trento 67, LLC v. OneWest Bank, N.A., et. al that the FHA COVID-19 moratorium constituted a stay of foreclosures for federally-backed mortgages, and thus tolled the statute of...more
7/31/2024
/ CARES Act ,
CPLR ,
Federal Housing Administration (FHA) ,
Financial Services Industry ,
Foreclosure ,
HUD ,
Judicial Foreclosure Process ,
Moratorium ,
Mortgagee Letters ,
Mortgages ,
Statute of Limitations
The New York County Supreme Court recently held that in the event of foreclosure, a receiver can be appointed, regardless of necessity, when the parties have contracted for such appointment. 24 West 57 APF LLC (“Defendant”)...more
4/3/2024
/ Borrowers ,
Contract Terms ,
Court-Appointed Receivers ,
CPLR ,
Ex Parte ,
Financial Services Industry ,
Foreclosure ,
Mortgage Lenders ,
Mortgages ,
NV Supreme Court ,
Real Estate Transactions ,
Receivership ,
Wells Fargo
In New York, it is settled precedent that a judgment of foreclosure and sale is final as to all questions at issue between the parties. Thus, once a final judgment is entered, both parties have no recourse or ability to raise...more
Does a lender have the right to foreclose its mortgage if a payoff of such mortgage is made by wire transfer, but the payment does not make it to the lender’s account? A recent case, heard on appeal by the New York Supreme...more
10/27/2023
/ Borrowers ,
Consumer Financial Products ,
Financial Institutions ,
Financial Services Industry ,
Foreclosure ,
Money Transfer ,
Mortgage Lenders ,
Mortgage Servicers ,
Mortgages ,
Ocwen ,
Uniform Commercial Code (UCC) ,
US Bank National Association ,
Wire Transfers
Two recent decisions concerning title insurance illustrate that an insured’s negligence can result in an exclusion from coverage and that title insurers generally do not owe a fiduciary duty to their insureds....more
2/1/2023
/ Breach of Contract ,
Breach of Duty ,
Denial of Insurance Coverage ,
Dissolution ,
Fiduciary Duty ,
Foreclosure ,
Limited Liability Company (LLC) ,
Loans ,
Membership Interest ,
Mortgages ,
Negligence ,
Policy Terms ,
Popular ,
Purchase Agreement ,
Washington Mutual
On July 6, 2022, the Court of Appeals for the Second Circuit decided In Re: Eileen Fogarty, holding that a mortgagee violated the automatic stay imposed when a tenant filed bankruptcy by proceeding with a foreclosure sale...more
When the interest rate on a mortgage financing is not fixed, the amount that a borrower may be required to pay may fluctuate depending on changes in the underlying index to which the “margin” or “spread” is tied. While a...more
The New York State Supreme Court, New York County Commercial Division (the “Court”) decided in U.S. Bank, N.A. v. 342 Property LLC, on February 14, 2022, that a mezzanine lender that is not a party to loan documents that...more
4/27/2022
/ Article III ,
Borrowers ,
Breach of Contract ,
Contract Terms ,
Default ,
Foreclosure ,
Intercreditor Agreements ,
Lenders ,
Membership Interest ,
Mezzanine Lenders ,
Mortgages ,
NY Supreme Court ,
Real Estate Market ,
Standing ,
Summary Judgment ,
US Bank National Association
The New York State Supreme Court, County of New York (the “Court”) decided in Atlas Brookview Mezzanine LLC v. DB Brookview LLC, on November 18, 2021, that an accommodation pledge entered into in connection with a mortgage...more
2/28/2022
/ Borrowers ,
Equity ,
Foreclosure ,
Loan Documentation ,
Loans ,
Mezzanine Lenders ,
Mortgages ,
NY Supreme Court ,
Real Estate Transactions ,
Right of Redemption ,
Security Agreements ,
Unenforceable Contract Terms ,
Uniform Commercial Code (UCC)
On November 10, 2021, the owner of the State Street Financial Center in Boston, Massachusetts defaulted on its debt, consisting of a mortgage loan in the amount of $535,000,000 and three mezzanine loans in the aggregate...more
On May 5, 2021, New York Governor Andrew Cuomo signed a bill that extends the moratorium on evictions and foreclosures for residential tenants and small businesses to August 31, 2021. The previous moratorium expired May 1,...more
6/2/2021
/ Commercial Tenants ,
Coronavirus/COVID-19 ,
Eviction ,
Financial Distress ,
Foreclosure ,
Infectious Diseases ,
Moratorium ,
Mortgages ,
Relief Measures ,
Rental Property ,
Small Business ,
State and Local Government
Can contracting parties waive all common law fiduciary duties? That was one of the questions presented to the New York Supreme Court, Appellate Division, First Department (the “Court”) in 111 West 57th Investment LLC, on...more
4/30/2021
/ Breach of Duty ,
Construction Project ,
Covenant of Good Faith and Fair Dealing ,
Delaware General Corporation Law ,
Fiduciary Duty ,
Foreclosure ,
Joint Venture ,
Loans ,
Mezzanine Lenders ,
Mortgages ,
NY Supreme Court ,
Real Estate Development ,
Uniform Commercial Code (UCC) ,
Waivers
Lenders often require their borrowers to be “special purpose entities” in real estate transactions. This is a way that lenders can mitigate their bankruptcy risk in the event that the borrower or any of its parent entities...more
Assembly Bill A3139 was introduced by Assembly Member Harvey Epstein on January 22, 2021. The bill is currently in committee but, if enacted, it will amend New York’s Real Property Law and Tax Law to require the recording of...more
3/5/2021
/ Equity Investors ,
Legislative Agendas ,
Mezzanine Lenders ,
Mortgages ,
Proposed Legislation ,
Real Estate Investments ,
Recording Statutes ,
State and Local Government ,
Tax Liability ,
Tax Planning ,
Tax Reform
Assembly Bill A3139 was introduced by Assembly Member Harvey Epstein on January 22, 2021. The bill is currently in committee but, if enacted, it will amend New York’s Real Property Law and Tax Law to require the recording of...more
In a recent concurring opinion, Judge Rowan D. Wilson sifts through and attempts to clear up some confusion in New York case law surrounding the doctrine of standing in foreclosure actions. ...more
Since declaring a State of Emergency on March 7, 2020 in response to the COVID-19 pandemic, New York Governor Andrew Cuomo has issued a number of Executive Orders providing protections for both commercial and residential...more
1/11/2021
/ Coronavirus/COVID-19 ,
Eviction ,
Executive Orders ,
Financial Distress ,
Foreclosure ,
Governor Cuomo ,
Landlords ,
Moratorium ,
Mortgages ,
Relief Measures ,
Rent ,
Rental Property ,
State and Local Government ,
Tenants
A recent decision of New York’s highest court potentially strengthens the ability of lenders to bring suits against third parties for participation in a borrower’s breach of single purpose entity/bankruptcy remote loan...more
On August 5, 2020, New York State Governor Andrew Cuomo issued Executive Order 202.55 (the “New Order”) to provide additional relief to renters impacted by the COVID-19 pandemic and extended the time periods for certain other...more
8/11/2020
/ Coronavirus/COVID-19 ,
Eviction ,
Executive Orders ,
Financial Distress ,
Foreclosure ,
Governor Cuomo ,
Landlords ,
Moratorium ,
Mortgages ,
Relief Measures ,
Rent ,
Rental Property ,
State and Local Government ,
Tenants
A new bill canceling rent for residential tenants, and mortgage payments for some qualified homeowners, was announced last week in New York. This new bill calls for the cancellation of residential rental payments, and...more
On June 2, 2020, in HH Mark Twain LP v. Acres Capital Servicing LLC, the Supreme Court of the State of New York (the “Court”) denied the defendant’s motion to dismiss the plaintiff’s “clogging” claim, thereby providing a...more