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Mortgage Litigation columnist Bruce J. Bergman Bruce J. Bergman

What could be more mechanical, pro forma and perhaps even boring than discontinuing a foreclosure action? For whatever reason, the foreclosing plaintiff wants the action to go away and the borrower in particular would typically be delighted that the threat to his property will become, at a minimum, less imminent. But of course, something lurks here which elicits this exploration. Problems can arise when a defendant argues against discontinuance and asserts that he is being damaged or prejudiced by a discontinuance.

Standard Procedure

To be sure, discontinuances of foreclosure actions are typically standard exercises. The mortgage is satisfied, or there is a short sale or a mortgage modification, or the matter is settled in some other fashion. Overwhelmingly, this means that the foreclosure needs to be withdrawn, more accurately, the action needs to be discontinued (and the lis pendens cancelled). This is accomplished (most often) by court order, often based upon a stipulation signed by all parties who have appeared, or if that is unavailable, pursuant to a motion. (For the procedural aspects of the discontinuance, see Bergman On New York Mortgage Foreclosure §24.11, LexisNexis Matthew Bender (rev. 2019)).

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