New York District Court Holds Plaintiff’s Failure To Properly File the Statutorily Required Notice of Pendency Warrants Denial of Motion For Default Judgment

The United States District Court, Northern District of New York, recently denied plaintiff’s motion for default judgment and for judgment of foreclosure and sale of certain property, finding plaintiff’s notice of pendency to be ineffective and, therefore, void.  See Ditech Financial LLC v. Frantz, 2017 WL 1184206 (N.D.N.Y. March 29, 2017).  In the case, plaintiff filed the action pursuant to Article 13 of the New York Real Property Actions and Proceedings Law (“RPAPL”) seeking to foreclose a mortgage executed by defendants.  After defendants failed to answer, plaintiff moved for default judgment.  In addressing plaintiff’s motion, the court first found that plaintiff met all of the common law requirements to foreclose its mortgage: plaintiff sufficiently demonstrated that defendants executed a note secured by a mortgage on the property and that those defendants defaulted on the note.  However, the court found that plaintiff did not meet all of the procedural requirements.  Section 1331 of the RPAPL requires that “[t]he plaintiff, at least twenty days before a final judgment directing a sale is rendered, shall file in the clerk’s office of each county where the mortgaged property is situated a notice of pendency of the action, which shall specify, in addition to other particulars required by law, the date of the mortgage, the parties thereto and the time and place of recording.”  Pursuant to CPLR 6511(a), the notice of pendency must also be filed with a copy of the complaint, unless the complaint has already been filed in that county.  The court found that plaintiff did not file the complaint with the notice of pendency as required by CPLR 6511(a), and that the only document attached to the notice of pendency was a legal description of the property.  The court noted that the purpose of a notice of pendency is to provide constructive notice to a purchaser from any defendant named in the notice and bind a purchaser by all proceedings taken in the action after such filing.  In this case, the failure to file a complaint with the notice rendered plaintiff’s notice defective and void.  Therefore, the court denied plaintiff’s motion for default judgment without prejudice.

For a copy of the decision, please contact Michael O’Donnell at, Michael Crowley at or Clarissa Gomez at