Editor: David Reiss
Brooklyn Law School

April 8, 2013

Rule of Law Cuts Both Ways

By David Reiss

The New York Appellate Division (2d Dep’t) reversed orders by Justice Schack of New York Supreme Court (Kings County) in HSBC Bank USA, N.A. v. Taher.  Justice Schack became something of a folk hero to many for holding lenders’ feet to fire for their lackadaisical approach to various formal requirements for foreclosures.  But he has been accused of playing fast and loose with the law himself.  Just as many have rightly said that lenders should be made to comply with the law governing foreclosures, those opposing lenders must do the same.  The Appellate Division wrote

Since Emmanuel was decided approximately two months before the Supreme Court improperly directed dismissal of the complaint in the instant action, sua sponte, for lack of standing, we take this opportunity to remind the Justice of his obligation to remain abreast of and be guided by binding precedent. We also caution the Justice that his independent internet investigation of the plaintiff’s standing that included newspaper articles and other materials that fall short of what maybe judicially noticed, and which was conducted without providing notice or an opportunity to be heard by any party (citation omitted) was improper and should not be repeated. (4)

There can be the rule of law without justice, but there can be no justice without the rule of law.

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