| HSBC Bank, USA v Dammond |
| 2009 NY Slip Op 01445 [59 AD3d 679] |
| February 24, 2009 |
| Appellate Division, Second Department |
| HSBC Bank, USA, Appellant, v Howard Dammond,Respondent, et al., Defendants. |
—[*1] Anne Fleming, Brooklyn, N.Y. (Cyrus Dugger, Meghan Faux, Daniel P. Mosteller, RobertYoung, and Lewis Creekmore of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Westchester County (Loehr, J.), entered January 11, 2008, which granted those branchesof the motion of the defendant Howard Dammond which were to vacate the judgment offoreclosure and dismiss the complaint.
Ordered that the order is reversed, on the law, with costs, and those branches of the motionwhich were to vacate the judgment of foreclosure and dismiss the complaint are denied.
This appeal arises from an attempt to foreclose a mortgage on property located in WhitePlains, which was owned by the defendant Howard Dammond (hereinafter the respondent). Thesubject mortgage was originally funded by First Continental Mortgage and InvestmentCorporation (hereinafter First Continental). By an assignment executed and dated September 7,2006, the mortgage and underlying note were assigned by Mortgage Electronic RegistrationSystems, Inc., as nominee for First Continental, to the plaintiff, HSBC Bank, USA (hereinafterHSBC). The assignment stated, inter alia, that it is "effective on or before June 16, 2006."
After the respondent had failed to make a number of monthly mortgage payments, HSBCcommenced this foreclosure action by filing a summons and complaint on July 27, 2006.Although [*2]it is undisputed that the respondent was personallyserved, he did not interpose an answer or timely move to dismiss the complaint, and thereafterHSBC obtained a judgment of foreclosure by default, and the property was scheduled for sale.However, immediately prior to the date scheduled for the sale of the property, the respondentobtained a temporary restraining order in an order to show cause staying the sale. The order toshow cause sought, inter alia, to vacate the judgment of foreclosure and dismiss the complaint. Insupport thereof the respondent argued, inter alia, that at the time the action was commenced,HSBC did not have standing since the assignment of the mortgage to HSBC post-dated thecommencement of its foreclosure action. The court granted those branches of the respondent'smotion which were to vacate the judgment of foreclosure and dismiss the complaint. We reverse.
The respondent waived any argument that HSBC lacked standing to commence theforeclosure action. Having failed to interpose an answer or file a timely pre-answer motionwhich asserted the defense of standing, the respondent waived such defense pursuant to CPLR3211 (e) (see Wells Fargo Bank Minn.,N.A. v Mastropaolo, 42 AD3d 239 [2007]). In addition, since the respondent failed todemonstrate any other meritorious defense to the foreclosure action, and did not demonstrate areasonable excuse for his failure to answer, it was error for the Supreme Court to grant thosebranches of the respondent's motion which were to vacate the judgment of foreclosure anddismiss the complaint (see CPLR 5015 [a] [1]; Matter of Macias v Motor Veh. Acc. Indem. Corp., 10 AD3d 396[2004]). Spolzino, J.P., Santucci, Balkin and Chambers, JJ., concur.