A client’s home was foreclosed by his mortgage lender and sold at a sheriffs sale. He had ten days after the sale to redeem the property by paying the lender. On the tenth day, he contacted me and indicated that he would be able to redeem in a couple of weeks. We filed bankruptcy for him that day on an emergency basis to extend the redemption period for 60 days. Unfortunately, the client could not
come up with the funds to redeem the property.
However, in reviewing the foreclosure docket, I was able to determine that he had not been properly served with the foreclosure summons and complaint. He said that he was not aware of the foreclosure until after the sheriffs sale. We therefore filed a motion to vacate the foreclosure judgment and sheriffs sale. That motion was denied by the court on the basis that the client had allegedly received several notices by certified mail from his lender’s attorney notifying him of various events during the course of the foreclosure.
We then filed an appeal of the denial of that motion. While the appeal was pending, the new owner of the house attempted to lock my client and his family out of their home. We did, that day, file an emergency application to stay the lockout with the trial court. That application was denied. We then filed an emergency application with the Appellate Division to stay the lockout which was also denied.
In the course of these applications, I became aware that the client’s wife had never been served with the foreclosure complaint, and that the lender had dismissed her from the foreclosure lawsuit. Although she was not in title, the wife did have an ownership interest in the house by law by virtue of living there while married to my client.
I then referred the wife to another skilled litigator who filed a motion with the court on an emergency basis to vacate the foreclosure judgment and sheriffs sale because the lender failed to join her as a necessary party to the foreclosure action. We worked together to brainstorm the basis for the motion. Fortunately, that motion was granted and ownership of the home was returned to my client and his wife.
While the foreclosure action is still pending, my client now has the right to either sell the house and pay off the lender, or to cure the mortgage arrears whereon the foreclosure would be dismissed. It should be noted that curing the arrears involves far less money than redeeming the house from the foreclosure judgment.
This was a complex matter that required immediate attention at several points but happily was resolved in my client’s favor and to his satisfaction. We never quit!
