Case Study

Adam Leitman Bailey, P.C. Defeats Order to Show Cause Staying Foreclosure Auction

Borrower, a commercial landlord, who also ran a business in one of the commercial units, defaulted on his mortgage in 2013.  Before hiring Adam Leitman Bailey, P.C., Lender commenced a foreclosure action in federal court, which resulted in a judgment that permitted the foreclosure and sale of the property, however, the Court later found that the parties lacked diversity, and the Lender was unable to proceed in the federal foreclosure action. Lender’s initial counsel then commenced an action in Supreme Court to domesticate the Federal Judgment of Foreclosure and Sale by summary judgment in lieu of complaint, but its motion was denied.

Given all of the setbacks, Lender retained Adam Leitman Bailey, P.C. to prosecute the foreclosure action. Adam Leitman Bailey, P.C. quickly strategized the proper procedural step to take and submitted a motion for judgment and the appointment of a referee.  The Court granted the motion, and Adam Leitman Bailey, P.C. was set to schedule a foreclosure auction.

Borrower, who was still running a business out of the property and collecting rents on the property, took every step to stop the auction.  

The first scheduled auction was canceled due to a bankruptcy filing.  The second scheduled sale was canceled due to a second bankruptcy filing. To combat the third scheduled sale, and since a third bankruptcy filing would not trigger the automatic stay, Borrower moved by order to show cause for an order staying Lender from holding a foreclosure auction on the ground that the Borrower allegedly had a buyer and would satisfy the mortgage.

Adam Leitman Bailey, P.C. opposed the motion arguing that the hope of selling the property was not a defense to foreclosure.  Adam Leitman Bailey, P.C. set forth that the Borrower failed to provide the Lender with a copy of any contract or even state a purchase price.  

The Court adopted Adam Leitman Bailey, P.C.’s argument in its decision and held that “defendant’s intention to sell the property is not a meritorious defense to the foreclosure action”, and the sale can proceed. 

Jackie Halpern Weinstein, Esq. and Danny Ramrattan, Esq. represented the Lender on behalf of Adam Leitman Bailey’s Foreclosure Group in this action.

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