Are condominium owners entitled to a mandatory foreclosure settlement conference under CPLR 3408 in an action to foreclose a lien for unpaid common charges?
I have a client who has a condominium apartment in foreclosure in New York. She defaulted by not appearing for a hearing on the condos summary judgment motion but she did oppose that motion with a written affidavit. Her reason for not appearing was due to medical illness and for whatever reason the court did not consider her opposing affidavit at all, presumably because it was inadvertently overlooked by the court. I filed a motion under CPLR 5015 and in the substantial interest of justice to vacate the default and alternatively to reargue the summary judgment motion. One of the issues raised is whether the court erroneously deprived condominium owner of a mandatory foreclosure settlement conference. The law provides that condominium foreclosures are to be handled like mortgage foreclosures. The law contains only one exception in that a condo board may seek a money judgment and foreclosure at the same time and is not subject to the election of remedies limitation found in RPAPL 1301 which is applicable to mortgage foreclosure actions. I argued that under the law the condominium owner was entitled to the mandatory foreclosure settlement conference and that under the uniform rules which apply all motions should have been held in abeyance. Therefore, the summary judgment motion should be vacated and conference scheduled. We are waiting to see what happens after oral argument is scheduled.