Mortgage Foreclosure-Related Handdowns - March 9, 2022
Wells Fargo Bank, NA v Rodriguez, 2022 Slip Op 01478 (March 09, 2022)
The Second Department affirmed a motion denying a defendant’s motion to vacate a judgment of foreclosure and sale. The defendant, E 4 St. Realty, had purchased the property from the borrowers when the notice of pendency had lapsed. The Second Department found that the purchaser failed to establish hat it lacked actual notice of the open and unsatisfied mortgage at the time of the conveyance or of the plaintiff's claim.
Selene Fin., L.P. v Firshing, 2022 Slip Op 01474 (March 09, 2022)
The Second Department affirmed an order granting judgment of foreclosure and sale and denying defendant’s cross-motion to dismiss the complaint. With respect to defendant’s standing argument, the motion court had already found that plaintiff demonstrated standing to foreclose and was affirmed on appeal, so the Second Department found that “law of the case” precluded defendant from arguing purported lack of standing again. Defendant had raised purported non-compliance with RPAPL §§ 1304 and 1306 for the first time in her reply in additional support of cross-motion, so it was not properly before the appellate division.
U.S. Bank N.A. v Pierce, 2022 Slip Op 01477 (March 09, 2022)
The Second Department affirmed an order denying the defendant’s motion to vacate an amended order and judgment of foreclosure and sale. The court found that Defendant had failed to establish a reasonable excuse for default in opposing the motion for judgment of foreclosure and sale because she “failed to substantiate her claim that she was incarcerated and unable to afford an attorney.” The court also found that because the property had been sold, the defendant’s equity of redemption “ha[d] been extinguished and could not be revived absent a showing of fraud, collusion, mistake, or misconduct in the sale.”
38-12 Astoria Blvd., LLC v Ramos, 2022 Slip Op 01433 (March 09, 2022)
The Second Department reversed a judgment of foreclosure and sale where the borrowers had not been served with a notice of the sale. The court found that because the defendants established that they were prejudiced by the lack of notice of the sale, they were entitled to have the sale set aside pursuant to CPLR § 2003 and RPAPL § 231(6).
Deutsche Bank Natl. Trust Co. v Kreitzer, 2022 Slip Op 01441 (March 09, 2022)
The Second Department reversed an order granting judgment of foreclosure and sale and an order granting summary judgment to plaintiff and denying defendant’s cross-motion for leave to amend her answer to assert a defense of lack of standing. The original answer was a pro se answer. The plaintiff relied on a lost note affidavit when it filed for summary judgment. The Second Department found that the affidavit was “insufficient to establish the facts preventing the production of the note.” It also found that the defendant should have been granted leave to amend her answer, as mere lateness is not a barrier, but must be “coupled with significant prejudice to the other side, the very elements of the laches doctrine."
HSBC Bank USA, N.A. v Herod, 2022 Slip Op 01444 (March 09, 2022)
The Second Department reversed an order granting summary judgment to the plaintiff where the answer had asserted a lack of standing and the plaintiff relied on an undated allonge to establish standing. The Second Department found that plaintiff failed to evidence that the note had been firmly affixed to the complaint prior to commencement of the action. Additionally, the power of attorney did not take effect until after the action was commenced.
JPMorgan Chase Bank, N.A. v Borukhov, 2022 Slip Op 01445 (March 09, 2022)
The Second Department affirmed an order denying the defendant’s motion to vacate a judgment of foreclosure and sale pursuant to CPLR § 5015(a)(2). The defendant had previously filed an unsuccessful motion to vacate the order of reference pursuant to CPLR § 5015(a)(1). Although the court found that the newly discovered evidence, which was the declaration of a private investigator, referenced materials that were in existence at the time of the renewed motion for summary judgment, and that in any event, the “newly discovered evidence” would not have produced a different result. The court also declined to consider an argument made for the first time on appeal that a basis to vacate existed pursuant to CPLR § 5015(a)(3).
KeyBank N.A. v Venziano, 2022 Slip Op 01446 (March 09, 2022)
The Second Department affirmed an order denying the defendant’s motion to set aside a foreclosure sale on the basis that the “the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court's conscience.”
MTGLQ Invs., L.P. v Goddard, 2022 Slip Op 01451 (March 09, 2022)
The Second Department affirmed an order denying the defendant’s motion to set aside a foreclosure sale on the basis that the defendant failed to establish that he was prejudiced by any alleged defect in the sale.