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Stay of Auction and Traverse Hearing for Service: James J. Quail & Associates Successes

James J. Quail & Associates, P.C. recently had the chance to represent a client who owned more than a dozen properties and ran into some real estate law trouble. One of the properties owned by our client appeared to be involved with a bank that walked away from enforcing a loan. A foreclosure action had been commenced in 2010 but then dismissed years later for impropriety.

Our client was not reserved and, after we waited the six-year statute of limitations on relevant filings, we commenced an action under RPAPL 1501 to discharge the mortgage. We were able to commence this action despite the mortgage having not been paid. The bank chose to default.

An Unserved Action from the Bank Complicates the Case

While that same action was pending, our Massapequa real estate attorneys learned that the same bank had filed another action that was not served upon him. Upon conducting a thorough investigation, we learned that the bank had obtained a default judgment after serving the wrong party, and that the property would be auctioned off the following week. We immediately brought an Order to Show Cause in Suffolk County Supreme Court for a stay of the auction.

At the hearing of the motion, we were able to get the bank to stipulate to have a hearing on whether or not there was proper service. If the hearing results in a finding that he was not served, we will continue the action to discharge the mortgage under RPAPL 1501. When that is done – and we do expect it to succeed – the client will be able to sell the property for full profit, or otherwise borrow against it free from the mortgage loan.

We represented a local business owner that was defending charges for improperly conducting his establishment. We were able to resolve in a few months a dispute that took seven years in the making for a nominal fine. All in all, this is a great success and we are proud to be able to say that our client is more than pleased with the outcome.

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