Appellate court lets UMB Bank walk away from foreclosure action
Then UMB Bank changed course.
In October 2024, the bank asked the court to let it discontinue the entire action and cancel the notice of pendency – the public filing that flags a property as the subject of litigation. The borrowers opposed the move, but the trial court granted UMB Bank’s request and denied the borrowers’ dismissal motion as academic, meaning that once the bank pulled the case, there was nothing left for that motion to apply to. The amended order was entered on April 7, 2025.
The borrowers appealed. The Appellate Division held firm.
Under New York’s CPLR 3217(b), a plaintiff can voluntarily discontinue an action by court order “upon terms and conditions, as the court deems proper.” The default rule is that unless the defendant can show special circumstances – including prejudice to a substantial right or other improper consequences – the discontinuance should be granted without prejudice. How and whether to grant it sits within the trial court’s discretion.
Here, the appellate panel found the borrowers had not shown they would be prejudiced by UMB Bank’s withdrawal. The court held the trial judge “providently exercised” that discretion in granting the bank’s motion to discontinue. It also confirmed that once the discontinuance was granted, denying the borrowers’ dismissal motion as academic was the right call.
