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Case Study · Foreclosure Defense · Appellate Division

In 2024 the bank wonwithout a trial.We appealed.

4 to 0Appeals court voteAll four sided with our client. That ruling: overturned.

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The Result
The panel
4 to 0
Argued January 9, 2026. Decided July 8, 2026.
The bank's bid for judgment
Denied
Also denied: striking her answer and naming a referee.
Her request to amend
Allowed
She can now challenge the bank's right to sue.
Appellate Division, Second Department · James Tierney, Steven Amshen and Maria Garber, Petroff Amshen LLP · 2026
Prior results do not guarantee a similar outcome. Every case turns on its own facts.
The Case

A ruling for the bank in 2024.
Why it did not hold.

Quick AnswerOn July 8, 2026, the Appellate Division, Second Department unanimously reversed an order of the Supreme Court, Queens County that had granted One West Bank FSB summary judgment in a foreclosure against Petroff Amshen's client, struck her answer and appointed a referee. The court held that under RPAPL 1302-a her standing defense was not waived by leaving it out of the answer, granted her leave to amend to add it and a contractual condition precedent defense, and held that with triable issues of fact about the bank's standing, the bank's motion "should have been denied." One bill of costs was awarded to our client.

What the bank had won

One West Bank FSB started this foreclosure in August 2009 against our client and others over a property in Queens. PHH Mortgage Corporation later took One West's place as its successor in interest.

Our client's answer didn't raise two defenses. The first was standing, which asks whether the bank had the legal right to bring the case at all. The second was that the bank failed to meet a condition the mortgage contract set before any foreclosure. When the bank moved for summary judgment, she opposed and asked the court for permission to amend her answer to add both.

Summary judgment is how banks usually win foreclosure cases, because it lets the court rule without a trial. In an order dated October 3, 2024, the Supreme Court, Queens County gave the bank exactly that. It also struck her answer, appointed a referee to compute the amount due on the note, and refused to let her amend.

How we got it reversed

We took the case to the Appellate Division, Second Department, which heard argument on January 9, 2026. All four justices on the panel ruled for our client.

On standing, the court relied on RPAPL 1302-a. Since December 23, 2019, that law has said a standing defense in a foreclosure on a home loan "shall not be waived" just because the borrower left it out of the answer. "Contrary to PHH's contention," the court wrote, leaving it out "does not bar her from asserting it in the action."

The contract defense works differently. It is normally waived if it isn't in the answer, but a court can still let a borrower add it by amendment, and requests to amend are supposed to be freely granted. PHH argued our client had waited too long. The court answered that "[m]ere lateness is not a barrier to the amendment." The burden was on PHH, as the party fighting the amendment, to show real prejudice from the delay or that the defense had no merit. It showed neither.

That decided the rest. Once her answer included standing, the bank had to prove standing to win summary judgment, and the court found triable issues of fact about whether One West had standing to start the case. The bank's motion for summary judgment, to strike her answer and for an order of reference "should have been denied."

The result

  • The October 3, 2024 order reversed on the law, by a unanimous panel.
  • The bank's motion for summary judgment against our client denied.
  • The bank's requests to strike her answer and for an order of reference denied.
  • Our client granted leave to amend her answer to add lack of standing and failure to comply with a contractual condition precedent.
  • One bill of costs awarded to our client.
A defense left out of the answer may still be in the case.
Timeline

From the 2009 lawsuit
to the July 2026 ruling.

October 3, 2024
The trial court grants the bank's motion.
January 9, 2026
Oral argument.
July 8, 2026
Reversed by all four justices.

On the bank's requests, the Appellate Division held they "should have been denied."

  1. Aug 2009
    One West sues to foreclose.
  2. Dec 2019
    RPAPL 1302-a takes effect.
  3. Oct 2024
    The trial court denies her request to add defenses.
  4. Jul 2026
    Both defenses allowed.
The Legal Record · Amending the Answer

What the answer did not say.
That was the appeal.

The record, in order: the law on each defense, and what the court held on each argument.

The standing defense · RPAPL 1302-a
Not waived
The law has protected this defense since December 23, 2019.
The contract defense · CPLR 3025(b)
Granted
Added by amendment. The other side showed no harm from the delay.
The argumentPHH saidThe Court held
01
A home loan keeps this defense.RPAPL 1302-a · standing
PHH saidLeaving standing out of her answer barred her from raising it.
The Court heldRejected
"Contrary to PHH's contention," leaving the defense out of her answer "does not bar her from asserting it in the action."
02
Late is not the same as unfair.CPLR 3025(b) · leave to amend
PHH saidIt was prejudiced by the lateness of her request.
The Court heldRejected
"[M]ere lateness is not a barrier to the amendment." PHH did not show it would be hindered in preparing its case, or that the defense was "palpably insufficient or patently devoid of merit."
03
No proof of standing, no judgment.CPLR 3212(b) · summary judgment
PHH saidThe bank was entitled to summary judgment, to strike her answer and to a referee.
The Court heldDenied
With standing now in the answer, the bank had to prove it. There were "triable issues of fact" about One West's standing, so those requests "should have been denied."
Two defenses, now in the case.The 2024 order, reversed.
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Legal Analysis · Plain English

What the Court decided,
and why it matters.

1. A standing defense survives the answer

RPAPL 1302-a, in effect since December 23, 2019, says that in a foreclosure related to a home loan, a defense based on the bank's lack of standing "shall not be waived" just because the borrower left it out of the answer. The court applied it here.

2. Other defenses can be added later

A defense that the bank skipped a step the mortgage required is normally waived if it is not in the answer. A court can still let the borrower add it by amending the answer, and requests to amend are supposed to be freely granted.

3. The other side has to show real harm

The burden is on the party fighting the amendment. In the court's words, "[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side." PHH showed neither prejudice nor that the defense lacked merit.

4. A defense in the answer has to be met

Once the answer included standing, the bank had to prove standing to win summary judgment. The court found triable issues of fact about whether One West had standing to start the case.

What this means if you're facing foreclosure

Plenty of people answer a foreclosure complaint before they have a lawyer, and some leave out defenses that matter. This decision shows that a standing defense on a home loan survives that mistake, and that other defenses can still be added later unless the bank proves real prejudice.

It also shows that summary judgment for the bank isn't always the end of the road. This one was reversed, and the bank will have to establish its standing before it can get summary judgment again.

If you're in a long-running foreclosure in Queens, Brooklyn or anywhere else in New York, take a hard look at what your answer says and what it leaves out. A defense you never raised may still be available, and the time to find out is before the bank asks for a judgment.

Attorneys on the Case

The attorneys
behind the win.

James Tierney, Steven Amshen and Maria Garber of Petroff Amshen LLP represented our client in the Appellate Division, Second Department.

James Tierney, Petroff Amshen LLP
Appellate counsel
Profile
Steven Amshen, Petroff Amshen LLP
Appellate counsel
Profile
Maria Garber, Petroff Amshen LLP
Appellate counsel
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Questions

Questions people search
about defenses left out of an answer.

Can I raise a standing defense if it was not in my answer?
In a New York foreclosure related to a home loan, yes. RPAPL 1302-a, in effect since December 23, 2019, says a standing defense "shall not be waived" if it was left out of the answer. Here the Appellate Division held that leaving it out "does not bar her from asserting it in the action."
Can I add a defense to my answer late in a foreclosure?
You may be able to. Requests to amend are supposed to be freely granted unless the other side shows prejudice or the defense is clearly without merit. Here the court held that "[m]ere lateness is not a barrier to the amendment." Every case turns on its own facts. Prior results do not guarantee a similar outcome.
What is a condition precedent defense in a foreclosure?
It is a defense that the bank failed to meet a condition the mortgage contract set before any foreclosure. Unlike standing, it is normally waived if it is not in the answer, but a court can still let a borrower add it by amendment.
Can summary judgment for the bank be reversed on appeal?
It can. Here a Queens court granted the bank summary judgment in an order dated October 3, 2024, and the Appellate Division, Second Department reversed it on July 8, 2026. The bank will have to establish its standing before it can get summary judgment again.
Does Petroff Amshen represent clients outside New York?
No. Petroff Amshen represents clients in New York only.
Glossary: the terms in plain English
Answer
The borrower's written response to the foreclosure complaint. Defenses are normally raised there.
Standing
Whether the bank had the legal right to bring the case at all.
Condition precedent
A step the mortgage requires before the lender can foreclose.
Leave to amend
The court's permission to change the answer, for example to add a defense.
Summary judgment
A ruling without a trial, when the papers show one side is entitled to win.
Order of reference
An order appointing a referee to compute the amount due on the loan.
Prejudice
Real harm to the other side's ability to present its case, not just delay.
Reversed on the law
The appeals court held the lower court applied the law incorrectly and changed its order.
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What clients
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James Tierney, Petroff Amshen LLP
Appellate counsel on this case
Steven Amshen, Petroff Amshen LLP
Appellate counsel on this case
Maria Garber, Petroff Amshen LLP
Appellate counsel on this case
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