Mortgage Foreclosure-Related Handdowns- March 16, 2022 Edition

CIT Bank, N.A. v Fernandez, 2022 Slip Op 01764 (March 16, 2022)

The Second Department reversed a judgment of foreclosure and sale and an order granting summary judgment in a reverse mortgage case. A judgment creditor of the borrower, who was added as a defendant pursuant to an amended complaint, opposed the motion for judgment of foreclosure and sale and argued that the affidavit in support of motion was inadmissible because it failed to comply with Bank of N.Y. Mellon v Gordon, 171 AD3d 197 (2d Dep’t 2019). The judgment creditor had filed an answer in this case.

Citimortgage, Inc. v Pierce, 2022 Slip Op 01765 (March 16, 2022)

The Second Department affirmed a short form order of reference and default judgment, which denied defendant’s cross-motion to dismiss, and also affirmed the long form order of reference. Before the orders appealed from were entered, the plaintiff had moved for an order of reference, and the defendant had cross-moved to dismiss. The plaintiff subsequently moved to reargue its motion for default judgment and an order of reference, and upon reargument, received vacatur of the dismissal. The plaintiff then moved for an order of reference and default judgment, which was granted; the IAS court also denied the defendant’s cross-motion to dismiss on the basis of RPAPL 1304, finding that the defendant was in default and that the prior order vacating dismissal contained a legal conclusion that plaintiff had a meritorious claim. On appeal, the Second Department found that the order vacating the dismissal, which was not appealed from, constituted law of the case with respect to CPLR § 3215(c). Although the Second Department was not bound by the law of the case doctrine, it declined to disturb the IAS court’s determination. Additionally, it found that the defendant was precluded from raising RPAPL § 1304, as she was in default.

Deutsche Bank Natl. Trust Co. v LoPresti, 2022 Slip Op 01767 (March 16, 2022)

The Second Department reversed an order granting a summary judgment to plaintiff on the basis that plaintiff had failed to evidence strict compliance with RPAPL § 1304. “However, neither counsel in her affirmation, nor a contract management coordinator for the plaintiff's loan servicer in an affidavit submitted in support of the motion, averred that they had personal knowledge of the mailing, or that the mailing was sent by both certified mail and first-class mail. Moreover, neither counsel nor the loan servicer's representative described any standard office procedure designed to ensure that the notices were mailed, and no domestic return receipts for the mailings were submitted in support of the motion.”

HSBC Bank USA, N.A. v Somalingam, 2022 Slip Op 01773 (March 16, 2022)

The Second Department affirmed an order denying the defendant’s motion pursuant to CPLR 5015(a)(3) to vacate a judgment of foreclosure and sale. It found that the allegations in the motion were not allegations of extrinsic fraud, as the defendant did not contend that the defendant did “not contend that the plaintiff's misrepresentations prevented him from fully and fairly litigating the matter.” Defendant’s argument that the plaintiff made misrepresentations about its standing to foreclose was an allegation of intrinsic fraud, which required a showing of meritorious defense and reasonable excuse for default.

JPMorgan Chase Bank, Natl. Assn. v Newton, 2022 Slip Op 01777 (March 16, 2022)

The Second Department reversed a judgment of foreclosure and sale and an order granting summary judgment to plaintiff. The defendants had filed a pro se answer, then amended their answer once they retained counsel, then unsuccessfully moved to amend the complaint for a third time. They then moved to preclude the note and mortgage as inadmissible, and then for leave to amend their answer again. Plaintiff cross-moved for summary judgment. Defendants moved to vacate the order denying their motion to amend their answer a third time, and to compel disclosure, and for entry of default orders on other motions. The IAS court denied the motions to preclude and for leave to amend and granted summary judgment to plaintiff. Plaintiff filed a motion to confirm the referee’s report, and defendants cross-moved to vacate the note of issue. The IAS court granted the motion for a judgment of foreclosure and sale. However, on appeal, the Second Department found that the affidavit in support of the cross-motion for summary judgment was inadmissible because no business records were attached. Summary judgment and the judgment of foreclosure and sale were vacated/reversed accordingly.

Mortgage Elec. Registration Sys., Inc. v McVicar, 2022 Slip Op 01782 (March 16, 2022)

The Second Department affirmed an order denying a defendant’s motion to dismiss pursuant to CPLR § 3215(c) for two reasons. First, it found that the defendant “took numerous steps throughout this action which may be viewed as formal or informal appearances” but did not list what those steps were. Second, it found that the plaintiff had moved for a default judgment within a year of defendant’s default and that it did not matter that the order of reference and default judgment was later vacated.

Mortgage Elec. Registration Sys., Inc. v McVicar, 2022 Slip Op 01783 (March 16, 2022)

The Second Department affirmed an order denying a motion pursuant to 22 NYCRR 130-1.1 for an award of attorneys' fees and expenses and the imposition of sanctions against the attorneys for the plaintiff. “The defendant failed to establish that certain statements in the affirmations of the plaintiff's attorneys related to the plaintiff's alleged compliance with CPLR 3408 and the recitation of the procedural history of this case were materially false … Further, the alleged incorrect statements in the affirmations regarding service at the defendant's residence appeared to have been inadvertent.”

Mortgage Elec. Registration Sys., Inc. v McVicar, 2022 Slip Op 01785 (March 16, 2022)

The Second Department affirmed the third-party defendants’ motion for summary judgment dismissing the complaint. The third-party defendants were the plaintiff’s attorneys in the foreclosure action. The “fact that the third-party defendants' supporting proof was placed before the Supreme Court by way of an attorney's affirmation annexing such proof,  [was] not fatal to the motion.” The borrower was barred by collateral estoppel because he had previously moved for sanctions in the foreclosure action and was denied.

Nationstar Mtge., LLC v Mei Kuey Wu Huang, 2022 Slip Op 01798 (March 16, 2022)

The Second Department reversed an order granting summary judgment of dismissal on the basis of statute of limitations to defendant. Although there had been a prior action, it had been discontinued voluntarily before six years had passed. The Second Department also reversed denial of plaintiff’s motion for summary judgment and remitted for a consideration of the issues raised by the parties aside from the statute of limitations defense raised by the borrower.

U.S. Bank N.A. v Gotterup, 2022 Slip Op 01831 (March 16, 2022)

The Second Department affirmed an order denying a nonparty (purchaser’s) motion to dismiss pursuant to CPLR § 3211(a)(8) on the basis that the borrower had not been properly served with the complaint, finding that a challenge to service of process is personal in nature and may “only be raised by the party allegedly improperly served.”

U.S. Bank N.A. v Lafond, 2022 Slip Op 01832 (March 16, 2022)

The Second Department reversed an order granting the defendant’s cross-motion to dismiss on statute of limitations grounds and denying summary judgment to plaintiff. Because the plaintiff had voluntarily discontinued its prior action, the subsequent action was not time-barred. Summary judgment in favor of plaintiff warranted because the plaintiff had produced the mortgage, the unpaid note, and evidence of the default.

U.S. Bank, N.A. v Stiene, 2022 Slip Op 01833 (March 16, 2022)

The Second Department reversed in part and modified short and long form orders vacating the dismissal of the complaint pursuant to CPLR § 3215 and granting default judgment to plaintiff. The Second Department found that the IAS court was authorized to vacate its prior order dismissing the action as part of its "inherent discretionary power" pursuant to CPLR § 5015(a). The motion for default judgment, however, should not have been granted, because CPLR § 3215(f) requires an affidavit made by the party. Because there was no evidence that the affiant had the authority to act on behalf of the plaintiff, the motion for default judgment and an order of reference should not have been granted.

US Bank N.A. v Perez, 2022 Slip Op 01834 (March 16, 2022)

The Second Department affirmed two orders, one of which denied the plaintiff’s motion for an order of reference and granted the defendant’s cross-motion to dismiss and the second of which denied the plaintiff’s cross-motion for its motion for an order of reference to be deemed timely filed nunc pro tunc. It found that the plaintiff failed to take steps to initiate proceedings for the entry of a default judgment against the defendant within one year after his default in the action, as well as within the additional time set forth in an order directing the plaintiff to file a motion for an order of reference within 60 days. “Contrary to the plaintiff's contention, its vague, conclusory, and unsubstantiated assertions that its delay was attributable to compliance with administrative orders and a change in counsel were insufficient to excuse the substantial delay.”

USA Residential Props., LLC v Jongebloed, 2022 Slip Op 01835 (March 16, 2022)

The Second Department reversed a judgment of foreclosure and sale and summary judgment because the complaint did not contain an allegation that the plaintiff complied with RPAPL § 1306. “Thus, a condition precedent to suit was not satisfied, and the plaintiff failed to establish its entitlement to summary judgment on the complaint insofar as asserted against [borrower] and an order of reference.”

Wells Fargo Bank, N.A. v Calvin, 2022 Slip Op 01837 (March 16, 2022)

The Second Department affirmed a judgment of foreclosure and sale. “The [IAS] Court properly denied Calvin's cross motion on the ground that she was precluded from raising the plaintiff's alleged failure to comply with the notice provisions of RPAPL 1304 as a defense to this action in the absence of having moved to vacate her default in appearing or answering the complaint.”