Mortgage Foreclosure-Related Handdowns - April 6, 2022

Wilmington Trust, N.A. v Wei P. Teo, 2022 Slip Op 02308 (April 06, 2022)

The Second Department affirmed an order granting a successor defendant’s motion to dismiss on the basis that the action was time-barred and that the plaintiff lacked standing. The copy of the note attached to the complaint was not endorsed to the plaintiff, nor was it endorsed in blank. The Second Department did not reach the arguments concerning statute of limitations in light of defendant having met its burden of demonstrating that the plaintiff lacked standing.

Bank of N.Y. Mellon v Ingrassia, 2022 Slip Op 02246 (April 06, 2022)

The Second Department found that a "Foreclosure Part Nassau County 90 Day Extension Order" directing the plaintiff to take all appropriate steps to obtain an order of reference or a judgment of foreclosure and sale within 90 days or risk dismissal pursuant to CPLR § 3215 was not self-executing and did not preclude an order granting summary judgment to plaintiff even though the plaintiff waited “several years” to seek summary judgment. Additionally, because an answer had been filed, CPLR § 3215 could not constitute a basis for dismissal. The judgment of foreclosure and sale was affirmed accordingly.

Chase Home Fin., LLC v Dasuja, 2022 Slip Op 02248 (April 06, 2022)

The Second Department affirmed an order denying plaintiff’s motion to restore the action to the active calendar and for default judgment, which order sua sponte dismissed the complaint pursuant to CPLR § 3215. “[T]he plaintiff's vague, conclusory, and unsubstantiated assertions attributing unspecified periods of delay to a change of counsel, a concomitant review of the file, waiting for documents, and compliance with a then newly adopted administrative order, were insufficient to excuse its lengthy delay in moving for a default judgment.”

HSBC Bank USA, N.A. v Jahaly, 2022 Slip Op 02254 (April 06, 2022)

The Second Department affirmed an order granting defendants’ cross-motion to dismiss on RPAPL § 1304 grounds, on the basis that the 90-day notice contained additional notices in violation of the statute.

HSBC Bank USA, N.A. v Kading, 2022 Slip Op 02255 (April 06, 2022)

The Second Department reversed an order that granted defendants’ cross-motion to dismiss and denied plaintiff’s motion for summary judgment as academic, on the basis that plaintiff’s non-compliance with RPAPL § 1301(3) “should have been disregarded as a mere irregularity” because the defendants were not prejudiced by two actions having been pending against them at one time.

LoRusso v DeLuca, 2022 Slip Op 02260 (April 06, 2022)

The Second Department reversed an order dismissing a complaint pursuant to CPLR § 3216 and severing the defendant’s counterclaims pursuant to 22 NYCRR 202.27(b).  CPLR 3216 is "extremely forgiving of litigation delay in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed.'" The plaintiff demonstrated a reasonable excuse for delay and a good and meritorious cause of action.

Miller v Stillwell Rd., Inc., 2022 Slip Op 02261 (April 06, 2022)

The Second Department affirmed an order granting judgment of foreclosure and sale. The Court declined to disturb the trial court’s finding that the plaintiff held the first lien position. This case involved construction loans, acquisition loans, and the plaintiff’s loan that was used to satisfy prior loans. The Second Department found that ”An encumbrancer is not protected if it fails to make an inquiry ’where it is aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue.’”

U.S. Bank N.A. v Doura, 2022 Slip Op 02301 (April 06, 2022)

The Second Department affirmed the denial of the plaintiff’s motion for summary judgment and reversed the portion of the order that denied the defendants’ cross-motion for summary judgment on their counterclaim to cancel and discharge of record the mortgage. The plaintiff’s predecessor had filed a prior action that was dismissed without prejudice more than six years after the action was commenced.

U.S. Bank Trust, N.A. v Biggs, 2022 Slip Op 02302 (April 06, 2022)

The Second Department affirmed an order denying defendants’ cross-motion to dismiss pursuant to RPAPL § 1301(3). Plaintiff had moved to discontinue its prior action, and that motion had been granted before the complaint in the subsequent action had been filed.

U.S. Bank Trust, N.A. v Caputo, 2022 Slip Op 02303 (April 06, 2022)

The Second Department affirmed an order denying an intervenor’s motion to set aside a foreclosure sale. The intervenor claimed that he was a bidder at the foreclosure auction whose bid was not accepted. "In order to provide a basis for setting aside a sale, the evidence of fraud, collusion, mistake, or misconduct must cast suspicion on the fairness of the sale…the record demonstrates that [intervenor] failed to present ‘evidence of fraud, collusion, mistake, or misconduct’ and failed to establish any other ground to warrant setting aside the foreclosure sale.”

U.S. Bank Trust, N.A. v Carter, 2022 Slip Op 02304 (April 06, 2022)

The Second Department affirmed an order granting the plaintiff’s motion, made pursuant to CPLR § 3103, for a protective order striking the discovery demands of the defendant (in the form of a subpoena ad testificandum and a subpoena duces tecum). The discovery had been served on plaintiff’s prior counsel. Plaintiff moved for a protective order. Defendant moved to compel compliance with the subpoenas; plaintiff cross-moved to quash them. “Contrary to the defendant's contention, the plaintiff's failure to object to the defendant's discovery demands within the time period set forth in CPLR 3122(a)(1) does not foreclose review of the plaintiff's challenge to those demands on the ground that they were palpably improper…[f]urther, many of the requests made in the defendant's combined discovery demands were palpably improper, since they sought irrelevant information, or were overbroad and burdensome. Under these circumstances, ‘the appropriate remedy is to vacate the entire demand rather than to prune it.’”

Wells Fargo Bank, N.A. v Lubonty, 2022 Slip Op 02305 (April 06, 2022)

The Second Department reversed an order in part, to the extent that the order had granted summary judgment to plaintiff. The plaintiff failed to demonstrate that it had mailed the notice of default required by the mortgage. However, the defendant was not entitled to dismissal, which defendant had sought on cross-motion, because the defendant did not establish that he had notified the plaintiff of a change of address. Accordingly, the defendant could not prove that plaintiff failed to comply with the mortgage when it sent a notice of default to the subject property.  

Wells Fargo Bank, N.A. v Singh, 2022 Slip Op 02306 (April 06, 2022)

The Second Department affirmed an order denying a motion pursuant to CPLR § 5015(a)(1) and (4) to vacate an order of reference and judgment of foreclosure and sale and to set aside the foreclosure sale. “The defendant's submissions in support of his motion, inter alia, pursuant to CPLR 5015(a)(4) to vacate the order of reference and the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him were insufficient to rebut the presumption of proper service or to warrant a hearing.“ Defendant also failed to offer a reasonable excuse for his default and did not establish that the delay of the foreclosure sale prejudiced a substantial right or to set forth evidence of fraud, collusion, mistake or misconduct to cast suspicion on the fairness of the sale.