Opinion
2014-01-29
JP MORGAN MORTGAGE ACQUISITION CORP., respondent, v. Judith HAYLES, appellant, et al., defendants.
Kenneth Pelsinger, Levittown, N.Y., for appellant. Bonchonsky & Zaino, LLP, Garden City, N.Y. (Christopher J.W. Verby and Peter Bonchonsky of counsel), for respondent.
Kenneth Pelsinger, Levittown, N.Y., for appellant. Bonchonsky & Zaino, LLP, Garden City, N.Y. (Christopher J.W. Verby and Peter Bonchonsky of counsel), for respondent.
THOMAS A. DICKERSON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In an action to foreclose a mortgage, the defendant Judith Hayles appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Rios, J.), entered July 12, 2011, as denied those branches of her motion which were pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale dated July 10, 2009, entered upon an order of the same court dated July 21, 2007, granting the plaintiff's unopposed motion for summary judgment on the complaint, and to dismiss the complaint insofar as asserted against her for lack of standing.
ORDERED that the order entered July 12, 2011, is affirmed insofar as appealed from, with costs.
The plaintiff initiated this foreclosure action after the defendant Judith Hayles defaulted on her loan obligation. Upon granting the plaintiff's unopposed motion for summary judgment on the complaint, the Supreme Court entered a default judgment of foreclosure and sale. Hayles attempted to secure a loan modification, but when that effort failed the plaintiff proceeded with an auction of the subject property, and purchased the property at the auction. Hayles then moved, inter alia, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale, and to dismiss the complaint insofar as asserted against her for lack of standing. The Supreme Court denied those branches of the motion.
Hayles contends that the action should be dismissed insofar as asserted against her for lack of standing because the plaintiff was not the holder of the underlying note and mortgage when it commenced the action ( see Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 507, 969 N.Y.S.2d 470; Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532). The Supreme Court properly rejected this claim because Hayles waived it by failing to challenge the plaintiff's standing in her answer or in a pre-answer motion to dismiss ( see Deutsche Bank Natl. Trust Co. v. Hussain, 78 A.D.3d 989, 990, 912 N.Y.S.2d 595; see alsoCPLR 3211[e]; CitiMortgage, Inc. v. Rosenthal, 88 A.D.3d 759, 761, 931 N.Y.S.2d 638).
A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action ( see Wells Fargo Bank v. Malave, 107 A.D.3d 880, 968 N.Y.S.2d 127). As Hayles failed to demonstrate any potentially meritorious defense to the foreclosure action or a reasonable excuse for her default in opposing the plaintiff's motion for summary judgment, the Supreme Court properly denied that branch of her motion which was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1) ( see Deutsche Bank Natl. Trust Co. v. Hussain, 78 A.D.3d at 990, 912 N.Y.S.2d 595).
Furthermore, the Supreme Court properly denied those branches of Hayles' motion which were, in effect, pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment of foreclosure and sale. In this regard, the record contains no evidence of fraud or misrepresentation, and an alleged lack of standing is not a jurisdictional defect ( see U.S. Bank N.A. v. Tate, 102 A.D.3d 859, 860, 958 N.Y.S.2d 722; Deutsche Bank Natl. Trust Co. v. Hunter, 100 A.D.3d 810, 811, 954 N.Y.S.2d 181).
Hayles' remaining contentions are without merit or are not properly before this Court.