Opinion
2013-01690, Index No. 15035/09.
2015-04-01
U.S. BANK, N.A., as Trustee, respondent, v. Janet Carter PETERS, appellant, et al., defendants.
Dillon, J.P., Leventhal, Sgroi and Hinds-Radix, JJ., concur.
Scunziano & Associates, LLC, Brooklyn, N.Y. (Nicholas P. Scunziano of counsel), for appellant. Rosicki, Rosicki & Associates, Plainview, N.Y. (Andrew Morganstern of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.
In an action to foreclose a mortgage, the defendant Janet Carter Peters appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated October 1, 2012, which denied her motion to vacate a judgment of foreclosure and sale.
ORDERED that the order is affirmed, with costs.
In May 2007, the defendant Janet Carter Peters (hereinafter the defendant) executed a note in the principal sum of $393,000 in favor of UBS AG Tampa Branch secured by a mortgage on the subject property. On or about October 20, 2008, the mortgage and note were assigned by Mortgage Electronic Registration Systems, Inc., as nominee for UBS AG Tampa Branch, to U.S. Bank, N.A., as Trustee (hereinafter the plaintiff). The assignment stated that it was effective as of July 29, 2008. The assignment was recorded on November 21, 2008. The instant action was commenced five months later, in April 2009. The summons was served by delivery to the defendant's adult son at the mortgaged premises, and by mail. The defendant did not appear in the action, a judgment of foreclosure and sale was entered upon her default, and the property was purchased at a foreclosure sale for $519,231.41.
In 2012, the defendant moved to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(2), (3), and (4), on the grounds that the plaintiff lacked standing, the documents submitted by the plaintiff in the action were materially false and fraudulent, and the plaintiff and its agents committed fraud. The order appealed from denied the defendant's motion in its entirety. The Supreme Court determined that the defendant failed to demonstrate a reasonable excuse for her failure to appear in the action and therefore it was unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense. The court further determined that the allegation that the plaintiff lacked standing was not jurisdictional.
The defendant alleged, pursuant to CPLR 5015(a)(3), that the plaintiff committed “intrinsic fraud,” by submitting fraudulent documents in support of its claim for a judgment of foreclosure and sale ( see Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 679, 810 N.Y.S.2d 923; Morel v. Clacherty, 186 A.D.2d 638, 639, 589 N.Y.S.2d 778). She did not allege “extrinsic fraud,” which is “a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter” (Shaw v. Shaw, 97 A.D.2d 403, 403, 467 N.Y.S.2d 231; see Bank of N.Y. v. Lagakos, 27 A.D.3d at 679, 810 N.Y.S.2d 923). Therefore, the defendant was required to show a reasonable excuse for her default ( see Bank of N.Y. v. Lagakos, 27 A.D.3d at 679, 810 N.Y.S.2d 923; Fischman v. Gilmore, 246 A.D.2d 508, 666 N.Y.S.2d 942; Morel v. Clacherty, 186 A.D.2d at 639, 589 N.Y.S.2d 778). However, she failed to offer any excuse for her default ( see Bank of N.Y. v. Lagakos, 27 A.D.3d at 679, 810 N.Y.S.2d 923; Long Is. Sav. Bank v. Sutphen, 222 A.D.2d 660, 661, 635 N.Y.S.2d 684).
The defendant contends that the assignment of the bid to another entity at auction constitutes newly discovered evidence under CPLR 5015(a)(2). However, since that event occurred after the judgment of foreclosure and sale was entered, it did not constitute newly discovered evidence pursuant to CPLR 5015(a)(2) ( see Chase Home Fin., LLC v. Quinn, 101 A.D.3d 793, 793, 954 N.Y.S.2d 897).
Although the defendant contends that the plaintiff lacked standing, lack of standing is not a defect that deprives a court of subject matter jurisdiction for purposes of CPLR 5015(a)(4) ( see Lacks v. Lacks, 41 N.Y.2d 71, 74–75, 390 N.Y.S.2d 875, 359 N.E.2d 384; Wells Fargo, N.A. v. Levin, 101 A.D.3d 1519, 1521, 958 N.Y.S.2d 227; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 243–244, 837 N.Y.S.2d 247).
Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion to vacate the judgment of foreclosure and sale.