This year my practice was full of heart-thumping deadlines, mind-stretching legal puzzles, and creative argument making. Like any appellate attorney worth her salt, I had some self-satisfying wins and some disappointing losses.
As the year draws to a close, I want to memorialize two wins that were not the most earth-shattering but reminded me how much I love to work with lawyers and their clients on appeals. I’m calling them my “big little wins” because they did not involve a dramatic change in the law, though they did help two homeowners take a step closer to their hard-fought goal: to save their home from foreclosure.
In this post (Part 1 of 2; read Part 2 here), I tell you about a case in which the crisp, clear brief I wrote convinced the First Department (of the New York Appellate Division) not only to reverse a summary judgment order granted in favor of a plaintiff-bank but also to dismiss the plaintiff’s complaint.
The facts were rather simple: the mortgage contained a provision requiring the bank to mail a 30-day default notice to the borrower at the property’s address before commencing a foreclosure action. The borrower never got a 30-day default notice. And when the bank (through its servicer) moved for summary judgment, they attached a copy of a default notice that was supposedly mailed to the borrower at an address that was not the property’s address or any other address linked to her.
The borrower raised this point in the motion court (though it was a bit unclear in her opposition papers). The bank responded by arguing the borrower waived her defense related to the 30-day notice because she did not plead it with specificity as an affirmative defense when she filed her answer. The motion court ignored the argument entirely and summarily granted the bank’s motion.
On appeal, I carefully laid out the facts showing the address on the 30-day default notice was not the borrower’s address; thus, the bank’s own evidence showed that it did not comply with the mortgage provision requiring the mailing of a default notice to the borrower at her address.
The bank once again argued the borrower waived this defense by not pleading it with specificity in her answer. I researched the law on this point and I found authority stating that a defense asserted in opposition to a motion is not waived if a plaintiff is not taken by surprise from it, regardless of whether it was pleaded specifically or not. In this case, it was clear the bank knew about the defense because they submitted a copy of a letter they claimed was the required 30-day default notice.
The First Department agreed and held the bank was not entitled to summary judgment because they did not prove that they mailed the required default notice.
I also argued that the bank had plenty of opportunities to present evidence that they mailed the notice, and the fact that they failed to do so leads to an inescapable inference that they never mailed the notice. A 30-day default notice is a contractual condition precedent, so if the bank did not mail the notice, their entire foreclosure action fails.
The First Department agreed with this argument as well – and they dismissed the bank’s complaint.
Dismissal of a foreclosure complaint is not the end of the road for a bank: they can usually start a new action for the same relief. But it is a big hit to their momentum, and their leverage, which will help the borrower in negotiations for a loan modification.
It was a big little win with real benefits.
Below is the brief I wrote (on behalf of the foreclosure defense attorney representing the homeowner) that convinced the First Department to rule in the homeowner’s favor (note that I changed the names and other identifying details to protect the client’s privacy).
Get in touch if you would like me to find and write a winning argument for your client’s case. I’m looking forward to more big and big little wins in 2020.
If you are not quite ready to use my services but want to stay in touch, then join my newsletter.
