Practice point: The Appellate Division affirmed the motion court's
denial, finding that defendant failed to demonstrate a potentially
meritorious defense to the action. In support of his motion, defendant
argued that the assignment of the mortgage to the plaintiff did not
comply with the terms of the original lender's pooling service
agreement. However, defendant did not have standing to assert
noncompliance with the agreement. In addition, defendant failed to make a
showing of a misrepresentation or that the plaintiff engaged in fraud
or other misconduct that would warrant vacatur of the judgment of
foreclosure and sale.
Student note: A defendant seeking to vacate a default in answering or appearing upon
the ground of excusable default must demonstrate a reasonable excuse for
the default and a potentially meritorious defense to the action, pursuant to CPLR 5015(A)(1). In
addition, CPLR 5015(a)(3) permits a court to vacate a judgment or order
upon the ground of fraud, misrepresentation, or other misconduct of an
adverse party.
Case: Bank of Am. N.A. v. Patino, NY Slip Op 04440 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Summary judgment on a promissory note.
