| JP Morgan Mtge. Acquisition Corp. v Hayles |
| 2014 NY Slip Op 00485 [113 AD3d 821] |
| January 29, 2014 |
| Appellate Division, Second Department |
| JP Morgan Mortgage Acquisition Corp.,Respondent, v Judith Hayles, Appellant, et al.,Defendants. |
—[*1] Bonchonsky & Zaino, LLP, Garden City, N.Y. (Christopher J.W. Verby and PeterBonchonsky of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Judith Hayles appeals, as limitedby 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 toCPLR 5015 (a) to vacate a judgment of foreclosure and sale dated July 10, 2009, enteredupon an order of the same court dated July 21, 2007, granting the plaintiff's unopposedmotion for summary judgment on the complaint, and to dismiss the complaint insofar asasserted 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 Haylesdefaulted on her loan obligation. Upon granting the plaintiff's unopposed motion forsummary judgment on the complaint, the Supreme Court entered a default judgment offoreclosure and sale. Hayles attempted to secure a loan modification, but when that effortfailed the plaintiff proceeded with an auction of the subject property, and purchased theproperty at the auction. Hayles then moved, inter alia, pursuant to CPLR 5015 (a) tovacate the judgment of foreclosure and sale, and to dismiss the complaint insofar asasserted against her for lack of standing. The Supreme Court denied those branches ofthe motion.
Hayles contends that the action should be dismissed insofar as asserted against herfor lack of standing because the plaintiff was not the holder of the underlying note andmortgage when it commenced the action (see Homecomings Fin., LLC v Guldi, 108 AD3d 506, 507[2013]; Bank of N.Y. vSilverberg, 86 AD3d 274, 279 [2011]). The Supreme Court properly rejectedthis claim because Hayles waived it by failing to challenge the plaintiff's standing in heranswer or in a pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d989, 990 [2010]; see also CPLR 3211 [e]; CitiMortgage, Inc. vRosenthal, 88 AD3d 759, 761 [2011]).
A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1) mustdemonstrate a reasonable excuse for the default and a potentially meritorious defense tothe action (see Wells FargoBank v Malave, 107 AD3d 880 [2013]). As Hayles failed to demonstrate anypotentially meritorious defense to the foreclosure action or a reasonable excuse for herdefault in opposing the plaintiff's motion for summary judgment, the Supreme Courtproperly denied that branch of her motion which was to vacate the judgment offoreclosure and sale pursuant to CPLR 5015 (a) (1) (see Deutsche Bank Natl. TrustCo. v Hussain, 78 AD3d at 990).
Furthermore, the Supreme Court properly denied those branches of Hayles' motionwhich were, in effect, pursuant to CPLR 5015 (a) (3) and (4) to vacate the judgment offoreclosure and sale. In this regard, the record contains no evidence of fraud ormisrepresentation, and an alleged lack of standing is not a jurisdictional defect (see U.S. Bank N.A. v Tate,102 AD3d 859, 860 [2013]; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810,811 [2012]).
Hayles' remaining contentions are without merit or are not properly before this Court.Dickerson, J.P., Hall, Cohen and Miller, JJ., concur.