Suffolk County Supreme Court Judges Hon. Jeffrey Spinner, Hon. Peter Mayer, Hon. Ralph Costello, and Hon. Thomas Whelan
Written by Craig D. Robins, Esq.
Four Suffolk County Supreme Court judges presented a views-from-the-bench program on December 9, 2009 about Mortgage foreclosure. The well-attended seminar at the Suffolk County Bar Association had over 100 participants. Cheryl Mintz was the moderator.
The program enabled the judges to provide some important insight into the rapidly-growing area of foreclosure litigation, especially considering a flurry of new legislation dealing with foreclosure procedural law and practice.
Foreclosure Caseloads Putting Strain on Court
Judge Ralph F. Costello commented on the lack of a sufficient number of Supreme Court judges that are necessary to adjudicate the ever-increasing number of foreclosure cases. He acknowledged the difficulty that the Office of Court Administration would have to provide additional judgeships, but felt that it was entirely reasonable to find budgeting to enable each judge to hire a second full-time law clerk. Doing so, he believed, would enable each judge to double their caseload.
There was an in-depth discussion about Governor Patterson’s new comprehensive foreclosure legislation which was just passed last month. The bill will greatly strengthen protections for homeowners, tenants and even neighborhoods, which can be plagued by blight.
Issue of Mortgagee’s Standing Is Becoming Increasingly Litigated
Judge Peter H. Mayer discussed the concept of standing and assignment, which is becoming an increasing source of consternation for mortgage companies. Apparently, there are many problems resulting from the sale of mortgages on the secondary mortgage market. Many foreclosing plaintiffs lack standing to bring the foreclosure suit, which can result in the dismissal of the case.
What a Foreclosure Judge Looks For
Judge Thomas F. Whelan broke his discussion into two sections, dealing with how the Court responds to foreclosure matters if an answer is filed, and if no answer is filed. He discussed the importance of asserting affirmative defenses if available, and also addressed the new Request for Judicial Form that is now used in foreclosure actions.
He also discussed how the law clerks review cases to make sure that certain prerequisites have been met, such as adherence to the relatively-new 90-day foreclosure notice rule, whether parties appeared at mandatory settlement conferences, whether the subject property is owner-occupied (if so, special protections under the new statute exist), and whether additional default notices as required by the CPLR have been provided.
Mandatory Foreclosure Settlement Conferences
Judge Jeffrey Arlen Spinner, who is in charge of the Mortgage Foreclosure Conference Part, discussed the relatively new requirement of mandatory settlement conferences for all foreclosure proceedings involving sub-prime mortgages.
“My role as a judge is to be impartial. I try to broker a settlement, if that’s at all possible,” said the judge. He commented on the high number of these conferences, now numbering between 100 and 120 each Tuesday, saying “we’re buried in cases; we’re buried in motions.”
Ray Vorhees, Law Secretary to Judge Mayer, also addressed the audience to highlight the fact that the legislative intent of these various statutes is to protect homeowners, and that the court must and will honor the import of such legislative intent.
Judge Spinner’s Controversial Horoski Decision Which Canceled Mortgage
Towards the end of the evening, Cheryl Mintz asked Judge Spinner to comment on the case everyone wanted to hear about – Horoski – and the audience expressed their excitement. This was the very recent case in which the Judge totally cancelled the mortgage in a foreclosure proceeding citing the bank’s egregious conduct. [See Judge Cancels Mortgage Due to Mortgagee’s Shocking Behavior in Long Island Foreclosure Action
Judge Spinner, however, mentioned a prohibition on commenting publicly on any case that is pending. He did mention that a new issue had arisen in the case which will result in the matter appearing before him on his calendar in the next few weeks.
In response to some pressing commentss about the case from one rather-insistent attendee, Judge Spinner did mention that his decision was one that is based in equity, rather than one based on law.