| Bank of Am. N.A. v Patino |
| 2015 NY Slip Op 04440 [128 AD3d 994] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| Bank of America National Association, as Successor byMerger to LaSalle Bank National Association, as Trustee for Morgan Stanley Loan Trust2006-3AR, Respondent, v Juan Patino, Appellant, et al.,Defendants. |
Lizarraga Law Firm, PLLC, Jackson Heights, N.Y. (William R. Lizarraga ofcounsel), for appellant.
Hogan Lovells US LLP, New York, N.Y. (Michelle L. Moshe, David Dunn, andChava Brandriss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Juan Patino appeals from an orderof the Supreme Court, Queens County (Greco, Jr., J.), dated January 24, 2014, whichdenied his motion to vacate a judgment of foreclosure and sale of the same court(Markey, J.) dated July 23, 2010, entered upon his failure to appear or answer thecomplaint.
Ordered that the order dated January 24, 2014, is affirmed, with costs.
In 2009, the plaintiff commenced this mortgage foreclosure action against, amongothers, the defendant Juan Patino (hereinafter the defendant). Upon the defendant'sfailure to appear or answer the complaint, a default judgment of foreclosure and sale wasentered. Thereafter, the defendant moved to vacate the judgment of foreclosure and sale.In the order appealed from, the Supreme Court denied the defendant's motion,concluding, among other things, that while the defendant had established a reasonableexcuse for his default, he had failed to demonstrate a potentially meritorious defense tothe action.
A defendant seeking to vacate a default in answering or appearing upon the groundof excusable default must demonstrate a reasonable excuse for the default and apotentially meritorious defense to the action (see CPLR 5015 [a] [1]; Wells Fargo Bank, N.A. vHampton, 119 AD3d 856 [2014]). In addition, CPLR 5015 (a) (3) permits acourt to vacate a judgment or order upon the ground of fraud, misrepresentation, or othermisconduct of an adverse party.
The Supreme Court correctly determined that the defendant failed to demonstrate apotentially meritorious defense to the action. In support of his motion, the defendantargued that the assignment of the mortgage to the plaintiff did not comply with the termsof the original lender's pooling service agreement (hereinafter the PSA). However, thedefendant did not have standing to assert noncompliance with the PSA (see Bank of N.Y. Mellon vGales, 116 AD3d 723, 725 [2014], citing Rajamin v Deutsche Bank Natl.Trust Co., 2013 WL 1285160, 2013 US Dist LEXIS 45031 [SD NY, Mar. 28, 2013, No. 10 Civ. 7531 (LTS)], affd 757 F3d 79, 87 [2d Cir2014]). Moreover, the defendant failed to make a showing of a misrepresentation or thatthe plaintiff engaged in fraud or other misconduct that would warrant vacatur of thejudgment of foreclosure and sale pursuant to CPLR 5015 (a) (3) (see Wells Fargo Bank, N.A. vHampton, 119 AD3d 856 [2014]; U.S. Bank N.A. v Allen, 102 AD3d 955 [2013]; U.S. [*2]Bank N.A. v Tate, 102 AD3d 859 [2013]). Thedefendant's remaining contentions are either without merit or are improperly raised forthe first time on appeal.
Accordingly, the Supreme Court properly denied the defendant's motion to vacate thejudgment of foreclosure and sale. Mastro, J.P., Leventhal, Cohen and Maltese, JJ.,concur.