Category Archives: Mortgages

Mortgage Foreclosure Proceedings: Murphy’s Law Meets Hill Street Blues

This article was originally published in the New York law Journal.

by Victor M. Metsch

Anything that can possibly go wrong, does.

-Murphy’s Law

                 Compulsive readers of advance sheets and decisions reported by the Office of Court Administration are exposed, on practically a daily basis, to the truism that, in mortgage foreclosure proceedings, given the opportunity, something will almost always go wrong.

The often  microscopic examination of procedural and substantive claims by the Courts  appears to be a result of the unique and complicated technical requirements of the proceeding; the sometimes suspect papers trails resulting from bank failures, regulatory interventions and bulk assignments; and the inability of mortgagees-by-assignment to parlay the necessary original documents with an acceptable chain of title and an affiant with personal knowledge of the facts.

As a result, the Courts now regularly and routinely deny motions for summary judgment in mortgage foreclosure proceedings in situations that, in the past, would have sailed through the civil courts without particularly close scrutiny.  A few recent examples follow: Continue reading

Perils of Mortgage Contingency Clauses in Residential Contracts

This article was originally published in the New York Law Journal.

by Victor  M. Metsch and Stephen W. O’Connell

The perils

Two recent decisions by Courts inKingsCountyandSuffolkCounty, published just days apart, remind us that mortgage contingency clauses in residential contracts of sale require meticulous drafting by counsel, informed understanding and approval by prospective purchasers, and literal compliance in order to avoid forfeiture of the often substantial down payment.

In one action, the buyer lost her deposit. And, in the other proceeding, the down payment was returned.  Both decisions turned on the reciprocal obligations of the parties to a contract to be completely candid with each other during the contract negotiation process, on the one hand, and to keep each other fully informed of all material subsequent events after the agreement is signed, on the other. Continue reading