Adam M. Swanson

Landowners—Summary judgment win, case law clarification

Obtained an apparent first impression ruling from a Connecticut Superior Court applying a three-year statute of limitations (SOL) to time bar a quiet title claim when the court granted our defendant landowners summary judgment dismissing the plaintiff neighboring landowner’s claims for quiet title and trespass. In dismissing the quiet title claim as time barred, the court adopted our argument that because the quiet title statute lacks an applicable SOL and no published decisions had ruled on its effective SOL, the three-year tort SOL was most analogous to apply—rather than a 15-year adverse possession SOL—because the plaintiff alleged tortious acts of encroachment against defendant landowner. 

Property owners—Bench trial win

Obtained a victory in a three-day bench trial for the new owners of a historic property in Weston, CT, from a Connecticut trial court on the Complex Litigation Docket that granted them immediate possession of the property, which they had obtained through a sale secured with the executor of the former owner’s estate and affirmed by a probate court, and ordering the eviction of the current occupants, the former owner’s widow and her business partner, who made various efforts to overturn the sale and block access to the property. The court also awarded costs to the new owners, and further granted the owners’ motion to remove any stays on executing the judgment pending any attempted appeals filed by the defendants.

Loan servicer—Appellate win

Obtained for a loan servicer, the first mortgage holder in a foreclosure case, a reversal of a trial court decision granting the assignee of a second mortgage holder intervention in the case and tolling of loan interest. In reversing the decision, the New York appellate division found that the assignee failed to prove its standing to intervene because the promissory note was not properly indorsed even though the second mortgage holder provided an affidavit stating it was in possession of the note and had purchased the loan. With this win, our client will obtain a judgment of foreclosure and sale and obtain full recovery of the mortgage in a matter that originally had been scheduled as a write off as unrecoverable before being referred to us. 

Loan servicer—Renewal win

Obtained a favorable decision from a New York state court on a motion to renew a prior summary judgment ruling for the plaintiff lender and on a motion to dismiss a foreclosure action in favor of the loan servicer due to the defendants’ lack of standing, precluding the defendants from asserting the recently enacted Foreclosure Abuse Prevention Act (“FAPA”) to reopen the statute of limitations as an affirmative defense. While the court did not rule directly on the FAPA issue, the court noted our constitutional challenges to FAPA were “seriously colorable.”  

Institutional client—NY Court of Appeals win

Obtained a favorable ruling for institutional client from New York’s Court of Appeals establishing for the first time, as a matter of law, that payments made on a mortgage debt reset the mortgage foreclosure statute of limitations without a lender having to prove the borrower’s intent in making those payments.

Loan servicer—Appellate win

Obtained for our client loan servicer a favorable ruling from New York’s Appellate Division, Second Department that precluded a meritorious statute of limitations defense from being interposed in a foreclosure action on the ground that the defendant’s post-action conveyance of collateral property divested it of standing to contest the action.

Loan servicer—Summary judgment win

Obtained a summary judgment ruling from a Connecticut Superior Court in favor of our client loan servicer in a quiet title action. On a novel point of law, the court ruled that a prior strict foreclosure judgment collaterally estopped the foreclosed owner from asserting claims to title to the mortgaged property even though, in the appeal of the prior foreclosure suit, the Connecticut Appellate Court affirmed the strict foreclosure judgment after the law days passed and did not dismiss the appeal as moot.

Mortgage servicer company—Lender liability claims dismissed

Defended successfully a mortgage servicer company against lender liability claims filed in the U.S. District Court, Eastern District of New York by plaintiffs who alleged multiple grounds for lender liability and sought a declaratory judgment that title of the real property in question was vested in the plaintiff and that the defendants had no interest or right to title to the subject property. The court granted our client’s motion to dismiss in toto on res judicata grounds and under the Roker-Feldman doctrine and allowed our client to proceed to enforce its judgment.

Mortgage servicer company—Favorable mortgage industry ruling

Obtained an important favorable ruling by the Connecticut Superior Court that struck down a claim for reformation of a mortgage based on fraud and clarified that under Connecticut law a broker is not the presumptive agent of a lender. The court held that borrowers seeking to avoid liability under a mortgage due to a mortgage broker’s actions bear the burden to prove that the broker was the agent of the mortgage owner. The ruling was important at a time when mortgage owners were losing assets as a consequence of promises made and actions taken by mortgage brokers selling subprime loans.

Mortgage servicer company—Favorable mortgage industry ruling

Obtained an important favorable ruling for a mortgage servicer company clarifying New York mortgage law within a mortgage-related dispute set in the federal Eastern District of New York court. The court ruled that (1) a promissory note cannot be split from a mortgage and (2) the use of the MERS® system, a database created by the mortgage banking industry that was widely being challenged at the time, for recording and transferring of mortgages was proper and acceptable.

Mortgage servicer company—Ruling on standing, possession

Represented a mortgage servicer company in a mortgage-related dispute and obtained a decision from the New York Appellate Division, Second Department holding that where the promissory note is annexed to the complaint, the plaintiff presumptively has standing and need not provide factual details concerning delivery of the note to establish possession prior to a particular date. 

Mortgage servicer company—Favorable FDCPA ruling

Represented a mortgage servicer company in obtaining a favorable ruling from the federal Eastern District of New York court clarifying the Fair Debt Collection Practices Act (FDCPA). The court held that although a mortgage servicer may also be a debt collector, it is not vicariously liable for the actions of its local litigation counsel who is also a debt collector. The court found while the defendant law firm may have violated the FDCPA by making misrepresentations to a “consumer,” those representations alone did not make the mortgage servicer vicariously liable.

Teleradiology services company—Civil claims dismissed

Obtained a dismissal of a lawsuit involving claims brought by a disgruntled independent contractor attacking business practices in the teleradiology services industry.