Opinion
2885.
Decided December 21, 2010.
Steven J. Baum, Esq., by Jill Anderson, Esq., Buffalo, NY, for the Plaintiff.
Shapiro, DiCaro Barak, LLP, by Ellis M. Oster, Esq., Rochester, NY, For the Non-party JP Morgan Chase Bank, N.A.
Plaintiff commenced this action by filing a copy of the summons and complaint and notice of pendency on February 6, 2009. Plaintiff obtained a judgment of foreclosure and sale dated November 2, 2009 against defendant MERS upon its default in appearing or answering the complaint. Nonparty JP Morgan Chase Bank, NA ("Chase") previously moved to stay the foreclosure sale, vacate the order of reference and judgment of foreclosure and sale and for leave to intervene as a party defendant and serve and file an answer.
By order dated June 30, 2010, the motion was denied. The Court found that Chase, the holder of the subordinate mortgage dated December 7, 2005 and recorded on February 1, 2006, obtained its interest in the property after the commencement of this action and after defendant MERS had defaulted in appearing or answering the complaint. The Court determined that under the circumstances, intervention on the part of Chase was not available. The Court also determined that to the extent the motion by Chase was one to vacate the default judgment as against defendant MERS, Chase had failed to offer any reasonable excuse for MERS's default.
Nonparty Chase moves for leave to reargue its prior motion resulting in the order dated June 30, 2010, and upon reargument, to stay the foreclosure sale, for leave to intervene as a party defendant, to vacate the order of reference and judgment of foreclosure and sale, and for leave to serve and file an answer.
On a motion for leave to reargue, the movant must demonstrate matters of fact or law allegedly overlooked or misapprehended by a court in determining the prior motion (CPLR 2221[d][2]).
Upon the foregoing papers, that branch of the motion for leave to reargue is granted, and, upon reargument, the motion is granted to the extent of granting Chase leave to intervene as a party defendant, vacating the order of reference and judgment, and directing defendant Chase to serve and file an answer within 20 days of service of a copy of this order with notice of entry.
Chase has demonstrated a "real and substantial interest in the outcome of the foreclosure action warranting its intervention" ( Greenpoint Sav. Bank v McMann Enters., 214 AD2d 647, 648 [2nd Dept. 1995]) to the extent it claims it satisfied the subject home equity mortgage at the time it obtained the First Central mortgage from MERS by assignment ( see, E*Trade Bank v Perez, 2009 WL 500851, 2009 WL 50314[U] [Sup. Ct. Queens County 2009].