Bank of America, N.A. v. Tornheim
82 A.D.3d 1141
N.Y. App. Div.
2011
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Bank of America, N.A., Respondent, v Eliahu Tornheim et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, Second Department, New York

1141; 919 NYS2d 372

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” (

).

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

;
;
).

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