Mortgage Foreclosure-Related Handdowns - March 30, 2022

799 Crown St., LLC v Leblanc, 2022 Slip Op 02105 (March 30, 2022)

The Second Department affirmed an order denying the plaintiff’s motion for an order of reference and default judgment. The defendants had not timely answered in the underlying foreclosure action, and the plaintiff moved for summary judgment, which defendants opposed. The lower court treated the motion as one brought pursuant to CPLR § 3215 and granted it. However, the defendants moved to reargue their opposition, and the lower court subsequently denied the motion as improper. Plaintiff moved a second time for an order of reference, and the motion was denied. On appeal, the Second Department found that the lower court correctly denied the motion for an order of reference, but for a different reason. The lower court’s reason for denial – that plaintiff had failed to mention the prior motion – was improper because defendants had not raised that argument. Instead, plaintiff was not entitled to default judgment because it failed to submit an affidavit of the plaintiff with exhibits.

Bank of N.Y. v Ilonzeh, 2022 Slip Op 02106 (March 30, 2022)

The Second Department affirmed an order denying a defendant’s motion pursuant to CPLR §§ 5015(a)(4) and 3215(c). The defendant failed to rebut the process server’s affidavit and thus could not prove that he was not served. Plaintiff had moved for default judgment within a year of defendant’s default, and thus dismissal pursuant to CPLR § 3215 (c) was not warranted.

Citimortgage, Inc. v Rogers, 2022 Slip Op 02109 (March 30, 2022)

The Second Department reversed an order in part, to the extent that the order had denied leave to file amend an answer. "In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit … the burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion.”

Deutsche Bank Natl. Trust Co. v Bancic, 2022 Slip Op 02112 (March 30, 2022)

The Second Department reversed a judgment of foreclosure and sale and granted defendant’s cross-motion to dismiss on Kessler grounds. Law of the case did not bar the Second Department from considering the Kessler argument even though the defendant had not raised an argument that the 90-Day Notices did not comply with RPAPL § 1304 in opposition to plaintiff’s summary judgment motion.

Federal Natl. Mtge. Assn. v Greenfeld, 2022 Slip Op 02114 (March 30, 2022)

The Second Department affirmed an order granting default judgment to the plaintiff after a traverse hearing was held in response to defendant’s cross-motion pursuant to CPLR § 3211(a)(8). The order of reference, which the parties consented to for the purpose of the traverse hearing, had directed the referee to hear and “determine,” rather than hear and report. Accordingly, the referee’s finding that service was properly effected was proper, and the defendant’ motion pursuant to CPLR § 4403 “[did] not lie.”

JPMorgan Chase Bank, N.A. v Garcete, 2022 Slip Op 02119 (March 30, 2022)

The Second Department affirmed an order denying a motion pursuant to CPLR §§ 3124 and 3126 and granting plaintiff’s cross-motion for summary judgment. The sole issues appeared to be standing and statute of limitations. The plaintiff had attached a copy of the HELOC endorsed in blank to the complaint, and the notices upon which defendant relied did not accelerate the debt. Additionally, the defendant was not permitted to argue forgery as an affirmative defense because she did not raise that defense in her answer, and thus raised it. (A letter from plaintiff purporting to deaccelerate the subject debt was found not to be evidence of a prior acceleration).

Nationstar Mtge., LLC v Grunwald, 2022 Slip Op 02130 (March 30, 2022)

The Second Department reversed an order that denied plaintiff’s motion to strike the affirmative defenses of the defendant and to substitute a successor in interest as the plaintiff, but found that the plaintiff failed to establish strict compliance with RPAPL § 1304, as the affidavit failed to allege personal knowledge of mailing practices and procedures or to attach proof of actual mailing.

U.S. Bank N.A. v Cox, 2022 Slip Op 02149 (March 30, 2022)

The Second Department reversed/modified in part an order granting plaintiff’s motion for summary judgment and denying defendant’s motion to dismiss on statute of limitations, standing and RPAPL § 1304 grounds. There was no statute of limitations defense because a prior action had been dismissed without prejudice and the lender had de-accelerated the loan through a letter. Standing was established by attaching a copy of the endorsed note to the complaint. Although the Second Department found that the affidavit established mailing of the RPAPL § 1304 notice, the defendant successfully argued that there were errors in the notice itself, which precluded summary judgment.

U.S. Bank N.A. v Hinds, 2022 Slip Op 02150 (March 30, 2022)

The Second Department reversed an order granting summary judgment to plaintiff and denying defendant’s cross-motion to dismiss, on the basis that additional material was included in the RPAPL § 1304 notice.

US Bank N.A. v Chkifati, 2022 Slip Op 02151 (March 30, 2022)

The Second Department reversed an order granting defendants’ motions to vacate an order of judgment of foreclosure and sale and for dismissal, pursuant to CPLR § 5015(a)(4).

Wells Fargo Bank, NA v Daniel, 2022 Slip Op 02155 (March 30, 2022)

The Second Department dismissed an appeal from an order and judgment of foreclosure and sale because the judgment of foreclosure and sale was vacated, rendering the appeal academic.