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James Tierney and Steven Amshen of Petroff Amshen LLP represented our clients in the Appellate Division, Second Department.
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Quick AnswerOn July 1, 2026, the Appellate Division, Second Department affirmed, with costs, an order of the Supreme Court, Nassau County that refused to revive a foreclosure dismissed against Petroff Amshen's clients. Bank of America started the case in November 2013, and Elizon Master Participation Trust I, the trust that took over the loan, continued it. In 2022 the court found the 90-day notice "contains impermissible debt collection and bankruptcy disclosures," vacated a 2018 summary judgment and, in February 2023, dismissed the complaint. The trust blamed law office failure for not opposing, and the Appellate Division called that excuse "conclusory and unsubstantiated." In a separate Nassau County action, our clients were awarded $32,287.50 in attorney fees under Real Property Law 282.
Bank of America, N.A. started this foreclosure in November 2013 against our clients over their property in Nassau County. Our firm has been on the file since 2014.
In an order entered November 15, 2018, the court granted summary judgment against our clients, struck their answer and appointed a referee. The same order substituted the trust as the plaintiff. The trust then moved for a judgment of foreclosure and sale, which is usually the last step before a house goes to auction.
Before a lender can sue to foreclose on a home loan in New York, RPAPL 1304 requires it to send the borrower a 90-day pre-foreclosure notice, and it has to get that notice right. While the trust's motion for a judgment of foreclosure and sale was pending, our clients asked the court to take another look at the 2018 summary judgment. The trust did not oppose.
The 90-Day Notice contains impermissible debt collection and bankruptcy disclosures.Supreme Court, Nassau County, order entered November 16, 2022
That made the notice defective, and the trust could not show it had met a condition it had to satisfy before foreclosing. The court denied the motion for a judgment of foreclosure and sale and vacated the 2018 summary judgment.
In December 2022 our clients moved for summary judgment dismissing the complaint against them. The trust did not oppose that motion either. On February 15, 2023, the court granted it and dismissed the complaint.
In February 2023 the trust asked the court to vacate both orders. A party that lets a motion go unanswered can sometimes get a second chance, but it has to show two things: a reasonable excuse for the default and a potentially meritorious opposition. The trust blamed law office failure. The court denied the request on July 13, 2023.
The Appellate Division, Second Department affirmed on July 1, 2026, with costs. Law office failure can excuse a missed response only when it comes with "a detailed and credible explanation of the default." The trust's excuse, the court held, was "conclusory and unsubstantiated." Without a reasonable excuse, the court did not need to go any further. All four justices agreed.
When a mortgage lets the lender charge the borrower its legal fees, New York law lets a borrower who successfully defends a foreclosure recover attorney fees too. In a separate Nassau County action, the court found that our fees related to the successful defense of the foreclosure and, in November 2025, awarded our clients $32,287.50.
The notice was dated June 10, 2013. The court vacated the 2018 ruling in 2022 and dismissed the complaint in February 2023.
The record, in order: what the law requires, what the notice contained, and what the courts held.
RPAPL 1304 requires a lender to send a 90-day notice before suing to foreclose on a home loan, and New York requires strict compliance. Here the court found the notice contained "impermissible debt collection and bankruptcy disclosures." A defective notice meant the trust could not prove a condition it had to meet before foreclosing.
Summary judgment was granted against our clients in 2018, and the trust was moving toward a sale. In 2022 our clients asked the court to take another look, and the court vacated the 2018 ruling once it found the notice defective.
A party that does not oppose a motion can ask the court to vacate the order, but it must show a reasonable excuse and a potentially meritorious opposition. Law office failure counts only with "a detailed and credible explanation of the default." The trust's excuse was "conclusory and unsubstantiated," so the Appellate Division did not need to look further.
Real Property Law 282 lets a borrower who successfully defends a foreclosure recover attorney fees when the mortgage lets the lender recover its own. A Nassau County court found our fees related to the successful defense of the foreclosure and awarded our clients $32,287.50.
A summary judgment for the bank is serious, but it is not always the end. Here it was undone years later because the very first step, the 90-day notice, was wrong.
If you received a 90-day notice before your foreclosure started, keep it and show it to a lawyer. What it says can matter, and so can what it should not say. And if your mortgage lets the bank charge you its legal fees, you may be able to recover yours when you win.
James Tierney and Steven Amshen of Petroff Amshen LLP represented our clients in the Appellate Division, Second Department.
I could not recommend a better group than Petroff Amshen. If you find yourself in a situation that requires the assistance of attorneys, this is the firm.
After years of battling in court, thousands of dollars in legal fees, and quite a few subpar attorneys, we found Petroff and Amshen, who delivered winning results. They're incredibly easy to talk to, making the whole legal process feel less intimidating.
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