Bank of Am., N.A. v Tornheim

2011 NY Slip Op 02614 [82 AD3d 1141]

March 29, 2011

Appellate Division, Second Department

As corrected through Wednesday, May 11, 2011

Bank of America, N.A., Respondent, v Eliahu Tornheim etal., Appellants, et al., Defendants.

—[*1]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 Tornheimappeal 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 inwhich 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 federalmoratorium on mortgage foreclosure actions when the instant action was commenced, due to thepassage of the Helping Families Save Their Homes Act of 2009 (see Pub L 111-22, divA, 123 US Stat 1632) (hereinafter the Helping Families Act). The Supreme Court denied themotion.

On May 20, 2009, President Obama signed into law the Helping Families Act (seePub L 111-22, div A, 123 US Stat 1632). "The Helping Families Act led to a variety of newmeasures designed to reduce foreclosures, preserve home ownership, and fight the contraction ofthe real estate market" (Robinson v Wells Fargo Bank, N.A., 2010 WL 2534192, *5,2010 US Dist LEXIS 60648, *15 [D Ariz 2010]).

Contrary to the defendants' contention, the Helping Families Act did not create a moratoriumon mortgage foreclosure actions. The "[s]ense of the Congress on foreclosures" provision reliedon by the defendants to support their argument (see Pub L 111-22, div A, § 401) ismerely precatory and does not create an enforceable right (see Lyng v Northwest IndianCemetery Protective Assn., 485 US 439, 455 [1988]; Monahan v Dorchester CounselingCtr., Inc., 961 F2d 987, 994-995 [1992]; Jian Li v Chertoff, 2007 WL 4326784, *5,2007 US Dist LEXIS 90472, *19 [ED NY 2007]).

Accordingly, the Supreme Court properly denied the defendants' motion to dismiss thecomplaint. Rivera, J.P., Balkin, Leventhal and Hall, JJ., concur.