Opinion
2011-03-29
BANK OF AMERICA, N.A., respondent, v. Eliahu TORNHEIM, et al., appellants, et al., defendants.
Bijal M. Jani, Pearl River, N.Y., for appellants. Shapiro, DiCaro & Barak, LLP, Rochester, N.Y. (Ellis M. Oster of counsel), for respondent.
Bijal M. Jani, Pearl River, N.Y., for appellants. Shapiro, DiCaro & Barak, LLP, Rochester, N.Y. (Ellis M. Oster of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Eliahu Tornheim and Alisa Tornheim appeal from an order of the Supreme Court, Rockland County (Weiner, J.), dated October 28, 2009, which denied their motion to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage on the single-family home in which the defendants Eliahu Tornheim and Alisa Tornheim (hereinafter together the defendants) lived. The defendants moved to dismiss the complaint, arguing, inter alia, that there was a federal moratorium on mortgage foreclosure actions when the instant action was commenced, due to the passage of the “Helping Families Save Their Homes Act of 2009” ( see Pub L. 111–22, Div. A, 123 U.S. Stat 1632) (hereinafter the Helping Families Act). The Supreme Court denied the motion.
On May 20, 2009, President Obama signed into law the Helping Families Act ( see Pub L. 111–22, Div. A 123 U.S. Stat. 1632). “The Helping Families Act led to a variety of new measures designed to reduce foreclosures, preserve home ownership, and fight the contraction of the real estate market” ( Robinson v. Wells Fargo Bank, N.A., 2010 WL 2534192 *5 [D Ariz. 2010] ).
Contrary to the defendants' contention, the Helping Families Act did not create a moratorium on mortgage foreclosure actions. The “Sense of the Congress on foreclosure” provision relied on by the defendants to support their argument ( see Pub. L 111–22, Div. A, § 401) is merely precatory and does not create an enforceable right ( see Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 455, 108 S.Ct. 1319, 99 L.Ed.2d 534;Monahan v. Dorchester Counseling Center, Inc., 961 F.2d 987, 994–995;Jian Li v. Chertoff, 2007 WL 4326784, 2007 U.S. Dist LEXIS 90472, *19 [E.D.N.Y.2007] ).
Accordingly, the Supreme Court properly denied the defendants' motion to dismiss the complaint.