Opinion
10-25-2016
JPMC SPECIALTY MORTGAGE LLC, Plaintiff–Respondent, v. Luis ESPADA, “John Doe” and “Jane Doe”, etc., Defendants–Appellants.
Carl E. Person, New York, for appellants. Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for respondent.
Carl E. Person, New York, for appellants.
Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for respondent.
TOM, J.P., MAZZARELLI, RICHTER, MANZANET–DANIELS, WEBBER, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 23, 2015, which denied the proposed intervenors' motion to dismiss the complaint or, in the alternative, to vacate their default and grant leave to answer, unanimously affirmed, without costs.
The proposed intervenors lack standing to raise the improper service defense on behalf of the mortgagor (see Wells Fargo Bank, N.A. v. Bowie, 89 A.D.3d 931, 932 N.Y.S.2d 702 [2nd Dept.2011] ). In any event, the defense is unavailing in light of the affidavits of service (see Matter of de Sanchez v. JP Morgan Chase Bank, 57 A.D.3d 452, 454, 870 N.Y.S.2d 24 [1st Dept.2008] ).
The limited power of attorney held by the proposed intervenors does not authorize them to litigate to protect the mortgaged property since they hold no title and are not mortgagors, and the title-holding owner purposefully chose not to litigate over the property (cf. Lorisa Capital Corp. v. Gallo, 119 A.D.2d 99, 108–109, 506 N.Y.S.2d 62 [2nd Dept. 1986] [realty management functions to which power of attorney was limited reasonably included litigating on behalf of absentee owner who could not do so for himself] ). In a similar vein, the mortgagor having intentionally stopped mortgage payments and declined to answer the complaint, no reasonable excuse could be shown to vacate the default (see Amalgamated Bank v. Helmsley–Spear, Inc., 109 A.D.3d 418, 419–420, 970 N.Y.S.2d 522 [1st Dept.2013], affd. 25 N.Y.3d 1098, 14 N.Y.S.3d 312, 35 N.E.3d 480 [2015] ).