A New York appeals court has just clarified a crucial rule in foreclosure litigation—here's what servicers and lenders need to know
In a decision handed down on May 21, New York’s Appellate Division, Second Department, ruled in favor of Bank of New York Mellon Trust Company, N.A. in a long-running foreclosure case, clearing the way for the lender to proceed with selling a property tied to a $540,000 mortgage.
The case revolves around a Queens home once owned by Una F. Hudson, who executed the mortgage note on January 26, 2009. The note was recorded on February 5, 2009. After Hudson passed away on December 23, 2014, the outstanding balance of $528,121.16 on the loan went unpaid, prompting the foreclosure action.
OneWest Bank, the plaintiff’s predecessor in interest, filed the foreclosure suit in April 2015 and recorded a notice of pendency—essentially putting the public on alert that the property was subject to legal action. That notice expired on April 14, 2018. OneWest did not file a new notice until May 15, 2018, after the expiration.
In December 2018, OneWest assigned the mortgage to Bank of New York Mellon Trust Company, N.A., which was later substituted as the plaintiff. The bank filed another notice of pendency on May 3, 2021. In October 2022, the bank moved to confirm the referee’s report, obtain a judgment of foreclosure and sale, and validate the successive notices of pendency. The motion was unopposed.
But the Supreme Court in Queens County denied the motion in an order entered May 16, 2023, finding that both the 2018 and 2021 notices were untimely and therefore invalid. Without a valid notice of pendency, the court reasoned, the foreclosure couldn’t proceed.
The appellate court disagreed. It ruled that special rules apply in foreclosure actions that allow successive notices of pendency to be filed—even after an earlier one has expired. That’s because under New York’s Real Property Actions and Proceedings Law, a notice must be on file at least 20 days before a final judgment directing a property sale is issued.
The court determined that Bank of New York Mellon’s filings complied with that requirement and held that the bank was entitled to move forward with the foreclosure and sale. The ruling also confirmed the referee’s findings about the amount due and the property’s eligibility to be sold in a single parcel.
For mortgage professionals, the decision clarifies a procedural gray area and affirms that delays in filing a new notice of pendency don't necessarily doom a foreclosure case—so long as the key statutory conditions are ultimately satisfied.
Although the opinion remains uncorrected and subject to revision before it is officially published, the outcome provides clear support for lenders navigating complex, multi-year foreclosure actions.
