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Bergman on New York Mortgage Foreclosures
Copyright 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

1-7 Bergman on New York Mortgage Foreclosures 7.syn


Election of Remedies and Initiating the Foreclosure Procedure


Bruce J. Bergman

Chapter Summary


This chapter from Bergman on New York Mortgage Foreclosures covers the election of remedies and initiating the foreclosure procedure.

The chapter first discusses the initial client contact and examines the documents and information required to prepare the acceleration letter or to foreclose. It next provides a general explanation of the two remedies available to the holder of the bond or note: to proceed at law and sue for judgment on the bond or note, or to proceed at equity and foreclose the mortgage. The chapter goes on to examine the applicable statute for the election of remedies, the consequences of failing to plead no other action pending, and the choosing of a remedy. The discussion then turns to examinations of the election to foreclose the mortgage and of the election to sue on the note. Other topics include the effect of subrogation, exceptions to the rule that foreclosure bars action at law, bringing an action on a fire insurance policy as an election of remedy, and liens for condominium common charges. The chapter provides numerous relevant forms and practice tips.

Bergman on New York Mortgage Foreclosures (Matthew Bender) provides definitive analysis of the law and practical guidance relating to residential and commercial property foreclosures in New York. It is complete with a multitude of annotated forms and tips for successful practice, covering mortgage drafting; mortgage collection procedures; acceleration of the debt upon default and defenses to acceleration; foreclosure process and procedures; alternative processes, including deed in lieu of foreclosure, settlement, and partial foreclosure; foreclosure litigation; the judgment of foreclosure and sale; bidding terms; the foreclosure closing; eviction; deficiency judgments; surplus money proceedings; and condominium and co-op foreclosures.


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For a general discussion of mortgage foreclosures, see Ch. 2, Overview and Guide to the Basics of Mortgage Foreclosure Concepts and Strategies.

For a discussion of default and acceleration, see Ch. 4, Default and Acceleration.


See Real Estate for the General Practitioner (Matthew Bender) for expert advice and insightful commentary on buying, selling, mortgaging, leasing, title problems, and critical related subjects.

See Steinman's Bergerman & Roth New York Real Property Forms Annotated (Matthew Bender) for over 4,000 pages of annotated forms, with statutory and case citations giving substantive and procedural background, covering contracts for the sale of realty, mortgages, landlord-tenant, commercial leases, foreclosures, mechanics' liens, tax titles, tax assessments, zoning, environmental regulation, rent strike proceedings, actions on statutory covenants, cooperatives, condominiums, and more.

See Stein on New York Commercial Mortgage Transactions (Matthew Bender) for expert guidance on commercial mortgage law in New York State, with discussion of the mortgage recording tax, title insurance, construction loans and the New York Lien Law, rental income and leases, defaults and acceleration, foreclosure and other remedies, usury, the closing process, and language that needs to appear in every New York mortgage.

See Warren's Weed New York Real Property (Matthew Bender) for expert analysis on New York real property law, with A-to-Z coverage of such topics as attorney-in-fact and agency powers, Brownfields Law in New York, common ownership of real estate, condominiums, cooperatives, easements, leasing and rent regulation, life estates and tenancy proceedings, maps and boundaries, mechanics' liens, mortgages, and zoning.

See New York Practice Guide: Real Estate (Matthew Bender) for guidance for handling real estate transactions, including in-depth analysis of the law, forms, and checklists. It covers the purchase and sale of all types of real estate, zoning and environmental controls, real estate tax assessment, landlord-tenant law, condominiums, cooperatives, and homeowner associations.
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