| Nationstar Mtge., LLC v Gross |
| 2022 NY Slip Op 00429 [201 AD3d 942] |
| January 26, 2022 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC, Plaintiff, v Sye Gross et al.,Appellants, et al., Defendants. Aurora Loan Services, LLC, NonpartyRespondent. |
Eran Regev, Manhasset, NY, for appellants.
Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Adam Wynn of counsel), fornonparty respondent.
In an action to foreclose a mortgage, the defendants Sye Gross and Goldie Gross appeal from(1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated November 15,2017, and (2) an order of the same court dated December 27, 2017. The order dated November15, 2017, insofar as appealed from, in effect, granted those branches of the motion of nonpartyAurora Loan Services, LLC, which were for leave to enter a default judgment against thedefendants Sye Gross and Goldie Gross, to amend the caption to substitute Nationstar Mortgage,LLC, as the plaintiff in the action, and for an order of reference, and denied that branch of thosedefendants' cross motion which was pursuant to CPLR 3211 (a) to dismiss the complaint insofaras asserted against them. The order dated December 27, 2017, insofar as appealed from, grantedthe same relief to nonparty Aurora Loan Services, LLC, amended the caption to substituteNationstar Mortgage, LLC, as the plaintiff in the action, and referred the matter to a referee toascertain and compute the amount due.
Ordered that the appeal from so much of the order dated November 15, 2017, as grantedthose branches of the motion of nonparty Aurora Loan Services, LLC, which were for leave toenter a default judgment against the defendants Sye Gross and Goldie Gross, to amend thecaption to substitute Nationstar Mortgage, LLC, as the plaintiff in the action, and for an order ofreference, is dismissed, as that portion of the order was superseded by the order dated December27, 2017; and it is further,
Ordered that the order dated November 15, 2017, is affirmed insofar as reviewed; and it isfurther,
Ordered that the order dated December 27, 2017, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to nonparty Aurora Loan Services, LLC.
On January 30, 2008, Aurora Loan Services, LLC (hereinafter Aurora), commenced [*2]this action against the defendants Sye Gross and Goldie Gross(hereinafter together the defendants), among others, to foreclose a consolidated mortgage oncertain residential property located in Brooklyn. The defendants did not timely appear or answerthe complaint.
By notice of motion dated June 5, 2017, Aurora moved, inter alia, for leave to enter a defaultjudgment against the defendants, to substitute its assignee, Nationstar Mortgage, LLC(hereinafter Nationstar), as the plaintiff in the action, and for an order of reference.
The defendants cross-moved, inter alia, pursuant to CPLR 3211 (a) (3) and (7) to dismiss thecomplaint insofar as asserted against them. In an order dated November 15, 2017, the SupremeCourt, in effect, granted Aurora's motion and denied the defendants' cross motion. In an orderdated December 27, 2017, the court granted Aurora's motion, amended the caption to substituteNationstar as the plaintiff in the action, and referred the matter to a referee to compute theamount due. The defendants appeal.
"On a motion for leave to enter a default judgment against a defendant based on the failure toanswer or appear, a plaintiff must submit proof of service of the summons and complaint, proofof the facts constituting the cause of action, and proof of the defendant's default" (L & Z Masonry Corp. v Mose,167 AD3d 728, 729 [2018]; see CPLR 3215 [f]; HSBC Bank USA, N.A. v Diallo, 190 AD3d 959, 960 [2021]; Liberty County Mut. v Avenue I Med.,P.C., 129 AD3d 783, 784-785 [2015]). "To defeat a facially sufficient CPLR 3215motion, a defendant must show either that there was no default, or that [he or she] had areasonable excuse for [his or her] delay and a potentially meritorious defense" (LibertyCounty Mut. v Avenue I Med., P.C., 129 AD3d at 785; see HSBC Bank USA, N.A. vDiallo, 190 AD3d at 960).
Here, Aurora submitted proof of service of the summons and complaint, proof of the factsconstituting its cause of action, including that the defendants defaulted on their paymentobligation, and proof that the defendants failed to appear or answer the complaint within the timeallowed (see RPAPL 1321 [1]; CPLR 3215 [f]; HSBC Bank USA, N.A. v Diallo,190 AD3d at 960). Contrary to the defendants' contention, Aurora was not required todemonstrate that it had standing in order to establish its prima facie entitlement to a defaultjudgment, as standing is not an essential element of a cause of action to foreclose a mortgage(see HSBC Bank USA, N.A. v Diallo, 190 AD3d at 960; US Bank N.A. v Nelson, 169 AD3d110, 113-114 [2019], affd 36 NY3d 998 [2020]).
In opposition, the defendants failed to show that they did not default in appearing oranswering the complaint, or that they had a reasonable excuse for their delay and a potentiallymeritorious defense. Since the defendants defaulted and failed to demonstrate grounds forvacating their default, they are precluded from asserting Aurora's alleged lack of standing as adefense to this action (see HSBC Bank USA, N.A. v Diallo, 190 AD3d at 960; Deutsche Bank Natl. Trust Co. v Hall,185 AD3d 1006, 1011 [2020]; U.S.Bank Trust, N.A. v Green, 173 AD3d 1111, 1112 [2019]).
Contrary to the defendants' contentions, RPAPL 1302 (1) (a) is inapplicable here (see U.S. Bank N.A. v Echevarria, 171AD3d 979, 981 [2019]), and Aurora established its compliance with RPAPL 1303 and 1320and CPLR 3012-b (see Nationstar Mtge.,LLC v Dekom, 161 AD3d 995, 997 [2018]; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822 [2017]).
Further, since the defendants appeared in the action and received notice of Aurora's motion,inter alia, for leave to enter a default judgment, Aurora complied with CPLR 3215 (g) (1). CPLR3215 (g) (3) only applies to defendants who have "never appeared in the action" (Paulus v Christopher Vacirca, Inc., 128AD3d 116, 121 [2015]; seeConfidential Lending, LLC v Nurse, 120 AD3d 739, 742 [2014]), which is not the casewith these defendants.
The Supreme Court properly granted that branch of Aurora's motion which was to amend thecaption to substitute Nationstar as the plaintiff, as Aurora demonstrated that the consolidatednote and mortgage were validly assigned to Nationstar after the commencement of the action(see CPLR 1018; Woori Am.Bank v Global Universal Group Ltd., 134 AD3d 699, 700 [2015]).
[*3] The defendants' remaining contentions are without merit.Rivera, J.P., Hinds-Radix, Ford and Dowling, JJ., concur.