| HSBC Bank USA, N.A. v Ashley |
| 2013 NY Slip Op 01443 [104 AD3d 975] |
| March 7, 2013 |
| Appellate Division, Third Department |
| HSBC Bank USA, N.A., as Trustee for the RegisteredHolders of Renaissance Home Equity Loan Trust 2006-1, Respondent, v RobertT. Ashley et al., Appellants. |
—[*1] Houser & Allison, New York City (Mitra Paul Singh of counsel) and DeRose &Surico, Bayside (Bruce Ashbahian of counsel), for respondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Lambert, J.), enteredNovember 21, 2011 in Delaware County, which denied defendants' motion to, amongother things, vacate a prior judgment of foreclosure and sale.
In 2006, defendants borrowed $383,500 from Delta Funding Corporation andexecuted a promissory note secured by a mortgage encumbering their real property. Themortgage instruments list Mortgage Electronic Registration Systems, Inc. as nominee ofDelta Funding and its assignees. Plaintiff, as assignee of the mortgage, commenced thisaction against defendants in April 2009 after they defaulted on their mortgage payments.Although defendants' counsel filed a notice of appearance in the action, defendants failedto answer the complaint, and a judgment of foreclosure and sale was rendered againstthem in November 2009.
A foreclosure auction was thereafter canceled upon defendants' filing of abankruptcy petition. In March 2011, following dismissal of the bankruptcy proceeding,defendants were mailed a notice of sale, informing them that their property would be soldat a public auction in May 2011. On the day before the auction, defendants moved tovacate the judgment of [*2]foreclosure and sale, and todismiss the complaint or permit them to file an answer. Supreme Court denied themotion, prompting this appeal.
We affirm. Supreme Court properly exercised its discretion in denying defendants'motion pursuant to CPLR 5015 (a) (3) and (4) to vacate the judgment of foreclosure andsale.[FN*]Defendants assert that they were entitled to vacatur because, they maintain, plaintiffengaged in fraud by falsifying documents regarding assignment of the mortgage in orderto make it appear as though it had standing to bring this action when it did not.Defendants waived their standing challenge, however, by failing to raise it in either ananswer or a pre-answer motion to dismiss the complaint (see Kruger v State Farm Mut.Auto. Ins. Co., 79 AD3d 1519, 1520 [2010]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 242 [2007]).
Moreover, defendants have been aware of the foreclosure action since 2009, havingappeared therein, but nonetheless failed to move for vacatur under CPLR 5015 (a) (3)within a reasonable time, and provided no excuse for the failure to exercise reasonablediligence in discovering the documentation that purportedly demonstrates fraud (see Bank of N.Y. v Stradford,55 AD3d 765, 765-766 [2008]; Rizzo v St. Lawrence Univ., 24 AD3d 983, 984 [2005];City of Albany Indus. Dev. Agency v Garg, 250 AD2d 991, 993 [1998]).Although a motion to vacate pursuant to CPLR 5015 (a) (4) based on lack of subjectmatter jurisdiction may be made at any time (see David D. Siegel, PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:3 at 206; see also State of N.Y. Higher Educ.Servs. Corp. v Sparozic, 35 AD3d 1069, 1070 [2006], lv dismissed 8NY3d 958 [2007]), defendants' assertion that they are entitled to proceed under thatprovision lacks merit inasmuch as a lack of standing does not implicate subject matterjurisdiction (see Kruger v State Farm Mut. Auto. Ins. Co., 79 AD3d at 1520;Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 243-244). Finally,Supreme Court did not abuse its discretion in denying defendants' motion for leave toserve a late answer given the absence of a reasonable excuse for the delay (seeCPLR 3012 [d]; ChristianaBank & Trust Co. v Eichler, 94 AD3d 1170, 1171 [2012]; 333 Cherry LLC v NorthernResorts, Inc., 66 AD3d 1176, 1177 [2009]).
Defendants' remaining arguments have been considered and, to the extent that theyare properly before us, found to be lacking in merit.
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.[*3]
Footnote *: Defendants haveabandoned their argument that they were entitled to vacatur under CPLR 5015 (a) (1) byfailing to raise the issue in their brief.