Motions to Reargue, Renew, Vacate and/or Dismiss as Part of Foreclosure Defense

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Motions to “Reargue”, Motions to”Renew” and Motions to Vacate an Order or Decision are Different Kinds of Motions for Reconsideration on the Supreme Court Level

• The Difference Between Motions to Reargue, Renew and/or Vacate and an Appeal
• The Strategy With Motions to Reargue and Notices of Appeal by Defendant
• Motions to Reargue by Defendant
• Motions to Renew by Defendant
• Motions to Vacate an Order or Decision by Defendant
• Motions to Dismiss by Defendant
• Motions for Summary Judgement and/or for A Default Judgment (or Order of Reference) by Plaintiff
• Motions for a Judgment of Foreclosure and Sale by Plaintiff
• The Defendant’s Strategy in Not Just Defending, but Also Seeking Reconsideration and/or Dismissal
• How Can Our Law Office Help You With a Motion for Reargument, Renewal and/or to Vacate?

1. The Difference Between Motions to Reargue, Renew and/or Vacate and an Appeal

Motions to reargue, renew and/or motions to vacate are various kinds of motions for reconsideration on the Supreme Court level. Often these motions may have to be made before the same judge who made the original decision and who now needs to be convinced to change his decision. For that reason these kinds of motions are inherently difficult since there are not many judges who would admit to making a wrong decision. Therefore it is important to move and advocate very carefully with these kinds of motions which essentially ask for reconsideration of the original decision in various ways. An appeal on the other hand, is seeking a reversal of the decision by the Supreme Court by going to the Appellate Division. In an appeal, we are trying to show a completely different judge that the original decision was wrong.

2. The Strategy With Motions to Reargue and Notices of Appeal by Defendant

Motions to reargue, renew and/or motions to vacate are more challenging than an appeal to ultimately have granted, but they are logistically much easier to take and much less expensive in terms of attorney fees and costs. It is for this reason that often when a foreclosure defendant disagrees with a decision on the Supreme Court level that it pursues a BOTH motion for reargument, renewal and/or vacature AND ALSO at the same time files a notice of appearance to be be able to ultimately appeal the decision. This combination not only allows the foreclosure defendant to seek reconsideration twice but in the course of seeking it from the Supreme Court, the Supreme Court judge deciding the reconsideration aspect of the case, also knows and is aware that the decision is being appealed.

3. Motions to Reargue by Defendant

Motions to reargue, under CPLR 2221(d), are motions that allege that the Supreme Court in its previous decision misconstrued the facts or the law in its previous decision. A motion to reargue needs to be brought within 30 days from the service of the notice of entry of the order that is being reargued. The motion tries to show the Supreme Court judge where they misunderstood or miscomprehended the facts or the law by focusing on it and showing it as incorrect or inapposite, either factually and/or legally. Thus in a complex fact pattern, we would try to show where the judge relied on the facts and misperceived what was being conveyed. Or in a case where we disagree with the judge’s decision on a legal basis, we need to show the judge that he relied on law that was either outdated, incorrect, or inappropriate for our situation. In this kind of motion we gently try to tell the judge that “they got it wrong” but diplomatically show how the facts and law were confusing. Once we establish what the court overlooked or what incorrect facts or law were relied upon, we next need to show the correct facts or law and how they probably would have led to a different decision by the Supreme Court judge. A motion to reargue is based on the court’s failure to correctly process the facts and law in front of it and is not an opportunity to appeal or to argue the same case in a different, better or more convincing manner or to try again in a different way to have the court to decide in one’s favor. See, Amato vs. Lord & Taylor, 10 AD 3rd 374, 781 NYS 125 (2nd Dept 2004). “[A] motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented.”

4. Motions to Renew by Defendant

Motions to renew, under CPLR 2221(e), are also difficult motions since they try to show that that the facts and/or law were changed since the motion practice and law that rendered the original decision and that if the facts and law back then were as they are now, that the Supreme Court Judge would have decided differently. See, Gall vs. Conlon-Sylvain, NYS Slip Opinion 04425 (2nd Dept. June 7, 2017). “A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and must also contain a reasonable justification for the failure to present such facts on the prior motion.” Unlike with motions to reargue, there is no time limit on motions to renew. Motions to renew are somewhat easier bring before the same judge than motions to reargue since they do not tell the judge that “they got it wrong” but that the law or facts materially “changed since your decision and that this change would have affected how your proceeded”. The difficult aspect in a motion to renew is to show that the new facts or law were truly new and unknown and could not have been asserted earlier when the original motion was made. Often the law or facts did not change radically but the discovery that they were different than how they were originally presented is made after the fact. To the extent they could have been presented better or more accurately may undermine the effort on a motion to renew.

Because it is difficult to establish whether a motion is one for reargument or for renewal the foreclosure defendant’s motion needs to be clearly identified as such. If a motion is being made for BOTH reargument AND renewal, the parts which are for each need to be clearly identified. It should be noted that a motion for reargument if denied cannot be appealed but that a motion for renewal if denied can be appealed.

5. Motions to Vacate an Order or Decision by Defendant

A motion to vacate an order or decision, under CPLR 5015, is different than a motion to reargue and/or renew in that often on a motion to vacate, the foreclosure defendant defaulted and the goal is to vacate the default. There are times when the motion to vacate is directed against an order or decision that was rendered when there was not a default by the defendant, but where the decision was the result of fraud, mistake, or other material procedural defects such as lack of jurisdiction. The most common reason for vacating an order or decision is “excusable default”, in a situation where the defendant was not served with the motion or was incapacitated and unable to respond. However, to vacate the default under CPLR 5015(a)(1), the defendant must show not just a “reasonable excuse” also show a meritorious defense. Allstate vs. North Shore University Hospital, 163 AD3d 745 92018). However, to show a “meritorious defense” the defendant does not have to show a defense that is necessarily or even likely to win. “To establish the existence of a potentially meritorious defense, defendants needed only to make a prima facie showing of legal merit, as the quantum of proof needed to prevail on a CPLR (a)(1) motion is less than that required when opposing a summary judgment motion.” Luderowski vs. Sexton, 152 AD3d 918 (2017). A motion for the vacating of an order or decision based on “excusable default” needs to be made within one year of the decision, while other bases for vacating an order or decision do not have such time limit. Other reasons to vacate orders or decisions are: fraud, mistake, misconduct of an adverse party, lack of jurisdiction, newly discovered evidence, or a reversal, modification or vacatur of a prior judgment or order upon which is is based.

Because motions to vacate an order or decision, are often made in situations where the defendant defaulted and because they are not subject to a 30 day deadline, they do not always have the same strategy as motions for rerargument and/or renewal where the motion is often paired up with an appeal.

6. Motions to Dismiss by Defendant

Motions to dismiss, under CPLR 3211, have some substantive overlap with the motions for reconsideration in that the same material defects in an order or decision that allow reconsideration, also allow may allow dismissal of the entire foreclosure litigation or specific causes of action within the case. The difference is that a motion to dismiss is usually more proactive than the other kinds of motions which try to undo an order or decision after it was rendered. Here the defendant is using the problematic issues raised to dismiss the action rather than go backwards within the action and undo an order or decision. Grounds include: documentary evidence negating the cause of action, lack of subject matter jurisdiction, lack of personal jurisdiction, lack of standing or capacity to sue, a duplicative action for the same relief, arbitration, collateral estoppel, bankruptcy discharge, res judicata, statute of limitations, statute of frauds, failure to state a cause of action, lack of a necessary party.

A motion to dismiss, like a motion for summary judgment discussed below, goes forward in raising the type of material objections to a foreclosure action that allow the foreclosure defendant in motions to reargue, renew and/or vacate, go backwards in seeking relief. While a motion to dismiss is very similar to a motion for summary judgment, it is usually made earlier in the proceeding, often in lieu of an answer, with the answer due 10 days after a notice of entry if the motion to dismiss does not succeed in dismissing the entire matter. While all of these motions raise core type issues and have overlap, they differ in timing in that with the motion to reargue, renew and/or vacate there is the realization of a court misunderstanding/mistake and new facts/laws that allow a motion that goes backwards. However if the foreclosure defendant realizes that they have these facts, laws arguments earlier, they should try to asset them either in their own motion to dismiss or for summary judgment or asserting them as counter claims.

7. Motions for Summary Judgment and/or for a Default Judgment (or Order of Reference) by Plaintiff

A motion for summary judgment, under CPLR 3212, is a motion that attempts to resolve a foreclosure litigation without a trial and is eventually made by the lender as the plaintiff in almost every foreclosure action, in an effort to resolve the case in favor of the plaintiff without a trial. Like the above motions, and especially like the motion to dismiss, made largely by the defendant, the motion for summary judgment, made largely by the plaintiff, seeks a final determination of the foreclosure case. Unlike the motion to dismiss which can resolve the whole foreclosure for the defendant based on certain fundamental deficiencies in procedure, in the motion for summary judgment the plaintiff asserts that there are no “material issues of fact” that require a trial and that all questions of fact and law should be clearly rendered in favor of the movant. Essentially the plaintiff tries to show that the defendant has no meritorious defenses and that the action can be decided without a trial. The goal of the defendant in defending the plaintiff’s motion for summary judgment, and other motion practice, is to show that there are material issues of fact and law for the the court to resolve in a trial and that the case is not the simple “collection case” without issues described by the plaintiff. Because, under CPLR 3214, the plaintiff’s motion for summary judgment stays all discovery, the defendant tries to start early in the action with discovery demands so it can avoid a shut down of discovery when the the plaintiff moves for summary judgment by showing that the plaintiff avoided and failed to comply with discovery and cross move on the motion for summary judgment with a cross motion to compel discovery.

Closely related to a motion for summary judgment, is a motion for a default judgment under CPLR 3215, which is also called a motion for an order of reference. This motion is similar to plaintiff’s motion for summary judgment but is made when the defendant has failed to answer the plaintiff’s summons and complaint and is considered in “default” in not answering. Under CPLR 3215(g) the plaintiff needs to show that if the defendant did not respond to the summons and complaint and is going to be considered in default in terms of answering, that the plaintiff not only served the defendant pursuant to CPLR 301-316, but that in addition there was additional mail service under CPLR 3215(g). To the extent to a defendant is in default in answering, under CPLR 3215(c) the motion for a default judgment needs to be filed so that the court order granting a default judgment is within a year of the date the defendant should have answered. Unless the plaintiff moves for a default judgment within a year from the last date the defendant could have answered the plaintiff’s entire case could be dismissed.

What motions for summary judgment and motions for a default judgment have in common is that they both have a component where the plaintiff requests that the court grant an order of reference, pursuant to CPLR 4311, which is a necessary part of every foreclosure. Under the order of reference a specific referee is picked by the court, in the order of reference to: a) calculate in a referee oath and report the amount owed to the plaintiff; and to b) conduct the foreclosure auction and sale. By appointing a referee the court puts a neutral party with a connection and duty to the court in charge of the conduct of the sensitive parts of the foreclosure process, thereby allowing a appearance of fairness in a process that is filled with dispute and if conducted by the plaintiff, without court oversight and involvement would be potentially distrusted.

8. Motions for a Judgment of Foreclosure and Sale by Plaintiff

A motion for a judgment of foreclosure and sale, is second major motion made by a plaintiff and is another opportunity for the defendant not just to oppose the motion but also to cross move. Here the focus is the plaintiff’s adherence with the procedural aspects of the foreclosure including getting approval for the referee report which computes the amount of the judgment owed to the plaintiff. Here the defendant can again find irregularities with the procedures and/or calculations, breakdowns and proof of the amounts owed so that the defendant and can cross move for a formal referee hearing. Often in long standing foreclosures there are questions about the records, accounting and the amount of legal fees, interest and expenses and delays in the procedure. The defendant can cross-move for a referee hearing and/or for discovery as to records of expenses, amounts paid and regarding issues of plaintiff’s delay, inefficiency and excessive costs and fees. Substantive issues which can not be waived and were not raised in the past litigation, can be raised, like standing, jurisdiction and notices.

9. The Defendant’s Strategy in Not Just Defending, but Also Seeking Reconsideration and/or Dismissal

In defending the plaintiff’s motions, including the motion for summary judgment, the defendant when possible should not just defend plaintiff’s motions, but also go when possible go on the offensive. Whenever possible, feasible and advantageous, the defendant should also seek either dismissal of the case, reconsideration of past decisions, and/or cross-move to compel discovery. By strategically seeking reconsideration by moving and/or cross-moving, pursuant to one of the motions above, the defendant not only defends the motion practice of the plaintiff going forward, but also seeks to undo the progress of the plaintiff by going backward. A motion for reargument needs to be brought within 30 days of a notice of entry, and often can be made within such time together with a notice of appeal, where the defendant believes a court decision to be wrongly decided against the defendant. But a motion or cross-motion to dismiss and/or to vacate a prior order or decision does not have such a short deadline. Essentially, the goal of the defendant is not only to be on the defense, but also to engage in counter attacking the plaintiff’s progress forward and also the fundamentals of the plaintiff’s case. The areas where the defendant can do this, are fundamental issues including: the plaintiff’s obtaining jurisdiction through service of process and proper service of motions; proof of plaintiff’s standing, possession of loan documents and a valid chain of ownership; the proper service of requisite notices (90 day notice and default notices); the disclosure of necessary information and documentation in discovery and/or the proper computation of the amounts owed to the plaintiff.

10. How Can Our Law Office Help You With a Motion for Reargument, Renewal and/or to Vacate?

How to seek reconsideration of prior motion practice and orders/decisions with a motion to to reargue and renewal and/or a motion to vacate, and/or with a notice of appeal (discussed in the accompanying section of this website focused on appeals) can require careful strategy. Foreclosure actions can get to be complex with many considerations and options available within the litigation. Our law office is uniquely situated to help you defend your home and property through the intricacies of the foreclosure process. Please contact us at 631-271-3737 for a free legal consultation.