| U.S. Bank, N.A. v Peters |
| 2015 NY Slip Op 02757 [127 AD3d 742] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank, N.A., as Trustee,Respondent, v Janet Carter Peters, Appellant, et al.,Defendants. |
Scunziano & Associates, LLC, Brooklyn, N.Y. (Nicholas P. Scunziano ofcounsel), for appellant.
Rosicki, Rosicki & Associates, Plainview, N.Y. (Andrew Morganstern ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Janet Carter Peters appeals froman order of the Supreme Court, Suffolk County (Rebolini, J.), dated October 1, 2012,which denied her motion to vacate a judgment of foreclosure and sale.
Ordered that the order is affirmed, with costs.
In May 2007, the defendant Janet Carter Peters (hereinafter the defendant) executed anote in the principal sum of $393,000 in favor of UBS AG Tampa Branch secured by amortgage on the subject property. On or about October 20, 2008, the mortgage and notewere assigned by Mortgage Electronic Registration Systems, Inc., as nominee for UBSAG Tampa Branch, to U.S. Bank, N.A., as Trustee (hereinafter the plaintiff). Theassignment stated that it was effective as of July 29, 2008. The assignment was recordedon November 21, 2008. The instant action was commenced five months later, in April2009. The summons was served by delivery to the defendant's adult son at the mortgagedpremises, and by mail. The defendant did not appear in the action, a judgment offoreclosure and sale was entered upon her default, and the property was purchased at aforeclosure sale for $519,231.41.
In 2012, the defendant moved to vacate the judgment of foreclosure and salepursuant to CPLR 5015 (a) (2), (3) and (4), on the grounds that the plaintiff lackedstanding, the documents submitted by the plaintiff in the action were materially false andfraudulent, and the plaintiff and its agents committed fraud. The order appealed fromdenied the defendant's motion in its entirety. The Supreme Court determined that thedefendant failed to demonstrate a reasonable excuse for her failure to appear in the actionand therefore it was unnecessary to determine whether she demonstrated the existence ofa potentially meritorious defense. The court further determined that the allegation that theplaintiff lacked standing was not jurisdictional.
The defendant alleged, pursuant to CPLR 5015 (a) (3), that the plaintiff committed"intrinsic fraud," by submitting fraudulent documents in support of its claim for ajudgment of [*2]foreclosure and sale (see Bank of N.Y. v Lagakos,27 AD3d 678, 679 [2006]; Morel v Clacherty, 186 AD2d 638, 639 [1992]).She did not allege "extrinsic fraud," which is "a fraud practiced in obtaining a judgmentsuch that a party may have been prevented from fully and fairly litigating the matter"(Shaw v Shaw, 97 AD2d 403, 403 [1983]; see Bank of N.Y. v Lagakos,27 AD3d at 679). Therefore, the defendant was required to show a reasonable excuse forher default (see Bank of N.Y. v Lagakos, 27 AD3d at 679; Fischman vGilmore, 246 AD2d 508 [1998]; Morel v Clacherty, 186 AD2d at 639).However, she failed to offer any excuse for her default (see Bank of N.Y. vLagakos, 27 AD3d at 679; Long Is. Sav. Bank v Sutphen, 222 AD2d 660,661 [1995]).
The defendant contends that the assignment of the bid to another entity at auctionconstitutes newly discovered evidence under CPLR 5015 (a) (2). However, since thatevent occurred after the judgment of foreclosure and sale was entered, it did notconstitute newly discovered evidence pursuant to CPLR 5015 (a) (2) (see Chase Home Fin., LLC vQuinn, 101 AD3d 793, 793 [2012]).
Although the defendant contends that the plaintiff lacked standing, lack of standingis not a defect that deprives a court of subject matter jurisdiction for purposes of CPLR5015 (a) (4) (see Lacks v Lacks, 41 NY2d 71, 74-75 [1976]; Wells Fargo, N.A. v Levin,101 AD3d 1519, 1521 [2012]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d239, 243-244 [2007]).
Accordingly, the Supreme Court providently exercised its discretion in denying thedefendant's motion to vacate the judgment of foreclosure and sale. Dillon, J.P.,Leventhal, Sgroi and Hinds-Radix, JJ., concur.