Bank of America, N.A. v. Tornheim , 919 N.Y.2d 372 ( 2011 )

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 US 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 US 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, 2010 US Dist LEXIS 60648, *15 [D Ariz 2010]).

Contrary to the defendants’ contention, the Helping Families Act did not create a moratorium on mortgage foreclosure actions. The “[s]ense of the Congress on foreclosures” 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 US 439, 455 [1988]; Monahan v Dorchester Counseling Ctr., 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 the complaint. Rivera, J.P, Balkin, Leventhal and Hall, JJ., concur.