HSBC Mtge. Corp. (USA) v Cohen
2010 NY Slip Op 20474
Decided on November 24, 2010
Supreme Court, Lewis County
McGuire, J.

Excerpt:

The issues presented here are finding repeated argument, typically via ex parte correspondence outside of formal motion practice. Counsel for mortgagees propound a position that defendant mortgagors in military status do not qualify for statutory service member protections if the service member/mortgagee executed the subject mortgage while a member of the military. It is the Court’s view that, respectfully, counsel for mortgagees propounding such a position in general, and counsel for this Plaintiff in particular, misapprehend both the Federal Servicemembers Civil Relief Act (SCRA) and New York Military Law. Although both SCRA and state law provide specific protections for service members related to mortgage [*2]foreclosures (50 App. USCA §533; NY Military Law §312), and Plaintiff correctly claims that these protections apply only where the mortgage obligation was incurred prior to the service member’s military service, it must be noted that both statutes also provide general protection to service members against default judgments.

The specific statutory provisions relating to mortgage foreclosures provide for special penalties and remedies if a sale or foreclosure occurs without adherence to the statutes when the service member executed the mortgage before entering military service. (50 App. USCA §533[c] & [d]; NY Military Law §312[3] & [4].)

The general protections against default judgments apply to any type of civil action, with no exception for mortgage foreclosures. There also is no statutory language indicating that the specific, mortgage foreclosure provisions supercede the general protection provisions.

It is the clear policy of the nation and our state to allow service members to focus their energies on the defense of our nation, and to be provided with protections from the burdens of civil actions while in active service. (50 App. USCA §502; NY Military Law §300.) Liberal construction of the service member protection statutes is advised. (NY Military Law §300; see e.g., In re Watson, 292 BR 441 [Bkrtcy SD Ga [2003].)

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