In a case of appellate first impression in New York, the
Appellate Division, Second Department, held that a
mortgagor cannot make a Real Property Actions and Proceedings Law
("RPAPL") 1304 argument in opposition to a motion for
Judgment of Foreclosure and Sale – even if that was pled as a
defense in the mortgagor's Answer – where the prior
summary judgment motion was unopposed.
In Wells Fargo Bank, N.A. v. Harrigan,1
after the lender commenced a foreclosure action in Suffolk County
against the mortgagor, the mortgagor filed an Answer, containing an
RPAPL 1304 compliance defense, specifically that a 90-day notice
was not properly mailed. The lender moved for summary judgment and
the mortgagor failed to oppose that motion, apparently because of
some unspecified law office failure. Thereafter, the lender moved
for Judgment of Foreclosure and Sale and the mortgagor cross-moved
for vacatur of the summary judgment order and dismissal of the
action based on the lender's
