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PIB Law Obtains Favorable Ruling from New York’s Appellate Division, Second Department Affirming Denial of Motion to Vacate Judgment of Foreclosure and Sale Pursuant to CPLR 5015(a)(3) Print PDF

07.19.2021

On July 14, 2021, in JPMorgan Chase Bank, National Association v. Barbara Singh Multani (Docket No. 2018-01055), New York’s Appellate Division, Second Department issued a Decision & Order in this contested foreclosure action, which affirmed the Supreme Court’s order denying Defendant’s motion to vacate judgment of foreclosure and sale (the “JFS”).

In the Supreme Court, Defendant was served with the summons and complaint, but failed to appear or answer the complaint. Plaintiff moved for and obtained the JFS.  Six months later, Defendant moved pursuant to CPLR 5015(a)(3) to vacate the JFS on the grounds that, inter alia, the assignment of mortgage was invalid based upon an alleged conflict of interest, i.e., that the attorney for Plaintiff executed the assignment of mortgage on behalf of the assignor when representing the assignee (namely, the Plaintiff). The Supreme Court denied Defendant’s motion, and Defendant appealed. 

On appeal, the Second Department held that the Supreme Court properly denied Defendant’s motion. As the Second Department recognized, if a defendant moves to vacate default under CPLR 5015(a)(3) based upon intrinsic fraud – i.e., on the basis that plaintiff’s allegations in the complaint are in fact false – then the defendant must establish both a reasonable excuse and a potentially meritorious defense to the action.

In this case, the Second Department found that the Defendant failed to provide any excuse, let alone a reasonable one for defaulting in failing to appear or answer the complaint. Therefore, it was unnecessary to even consider whether Defendant had a potentially meritorious defense.

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