| U.S. Bank Trust, N.A. v Green |
| 2019 NY Slip Op 04988 [173 AD3d 1111] |
| June 19, 2019 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank Trust, N.A., as Trustee for LSF9 Master ParticipationTrust, Appellant, v Taysha Green et al., Defendants. |
Cohn & Roth, LLC, Mineola, NY (Kevin T. MacTiernan of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from two orders of the SupremeCourt, Queens County (Diccia T. Pineda-Kirwan, J.), entered May 5, 2017, and October 12,2017, respectively. The order entered May 5, 2017, denied the plaintiff's unopposed motion forleave to enter a default judgment and for an order of reference. The order entered May 5, 2017,denied the plaintiff's unopposed renewed motion for leave to enter a default judgment and for anorder of reference
Ordered that the order entered October 12, 2017, is reversed, on the law, without costs ordisbursements, and the plaintiff's renewed motion for leave to enter a default judgment and for anorder of reference is granted; and it is further,
Ordered that the appeal from the order entered May 5, 2017, is dismissed as academic inlight of our determination on the appeal from the order entered October 12, 2017, without costsor disbursements.
The plaintiff commenced this residential mortgage foreclosure action against variousdefendants, including the borrowers Taysha Green and Liza Green. None of the defendantsappeared in the action. Thereafter, the plaintiff moved for leave to enter a default judgment andfor an order of reference. In an order entered May 5, 2017, the Supreme Court denied theunopposed motion, holding, among other things, that the affidavit of merit submitted in supportthereof, executed by an officer of the plaintiff's loan servicer, Caliber Home Loans, Inc.(hereinafter Caliber), was not accompanied by a valid power of attorney establishing Caliber'sauthority to act as the plaintiff's attorney-in-fact.
Thereafter, the plaintiff filed a renewed motion for leave to enter a default judgment and foran order of reference, this time supported by, among other things, a limited power of attorneyauthorizing Caliber to act on behalf of the plaintiff. By order entered October 12, 2017, theSupreme Court denied the plaintiff's unopposed renewed motion as insufficient. The plaintiffappeals from both orders.
An applicant for a default judgment against a defendant must submit proof of service of thesummons and complaint, proof of the facts constituting the claim, and proof of the defaultingdefendant's failure to answer or appear (see HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 944 [2017];see CPLR 3215 [f]). To demonstrate the facts constituting the cause of action, theplaintiff need only submit sufficient proof to enable a court to determine if the cause of action isviable, since "defaulters are deemed to have admitted all factual allegations contained in thecomplaint and all reasonable inferences that flow from them" (Woodson v Mendon LeasingCorp., 100 NY2d 62, 71 [2003]; seeMortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d 804, 806 [2013]).
Here, the plaintiff's unopposed renewed motion for a default judgment was facially adequatepursuant to CPLR 3215 (f), and therefore, should have been granted (see HSBC Bank USA,N.A. v Clayton, 146 AD3d at 944; U.S. Bank N.A. v Wolnerman, 135 AD3d 850, 851 [2016]).Contrary to the Supreme Court's determination, the plaintiff was not required to demonstrate itscompliance with RPAPL 1304, since the failure to comply with RPAPL 1304 is not ajurisdictional defect, and that defense was never raised by the borrowers, who failed to appear oranswer the complaint (see FlagstarBank, FSB v Jambelli, 140 AD3d 829 [2016]; U.S. Bank N.A. v Carey, 137 AD3d 894, 896 [2016]). Moreover,the plaintiff established its entitlement to an order of reference (see RPAPL 1321; Aurora Loan Servs., LLC v Movtady,165 AD3d 1025, 1026 [2018]).
Accordingly, the Supreme Court should have granted the plaintiff's renewed motion for leaveto enter a default judgment and an order of reference.
The plaintiff's appeal from the order entered May 5, 2017, has been rendered academic inlight of our determination on the appeal from the order entered October 12, 2017. Chambers,J.P., Cohen, Duffy and Iannacci, JJ., concur.