Olympia Mortgage Corp. v. Ramirez

Full title: OLYMPIA MORTGAGE CORP., Respondent, v. FERNANDO RAMIREZ et al., Appellants

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 12, 2004

9 A.D.3d 401 (N.Y. App. Div. 2004)

780 N.Y.S.2d 611

Opinion

2003-02004.

July 12, 2004.

In an action to foreclose a mortgage, the defendants Fernando Ramirez and Jose Rodriguez appeal from an order of the Supreme Court, Suffolk County (McNulty, J.), dated January 24, 2003, which denied their motion to vacate and set aside the foreclosure sale.

Ordered that the order is affirmed, with costs.

Before: Smith, J.P., Krausman, Crane and Spolzino, JJ., concur.

There is no merit to the appellants' contention that their execution of the forbearance agreement with the plaintiff constituted an appearance in this action to foreclose a mortgage ( see Polish Natl. Alliance of Brooklyn, U.S.A. v. White Eagle Hall Co., 98 AD2d 400, 403). Since the appellants defaulted in appearing and the forbearance agreement did not entitle them to notice of the sale, the plaintiff's failure to serve them with notice of the sale after their default provided no basis for granting their motion to vacate and set aside the foreclosure sale ( see Bank of N.Y. v. Agenor, 305 AD2d 438; Galasso v. 592 Pac. St. Realty Corp., 304 AD2d 789; Colombi v. RWL Constr. Corp., 278 AD2d 191).