JP Morgan Mtge. Acquisition Corp. v Hayles, 2014 NY Slip Op 00485 [2nd Dept. 2015]
Hayles contends that the action should be dismissed insofar as asserted against her for lack of standing because the plaintiff was not the holder of the underlying note and mortgage when it commenced the action (see Homecomings Fin., LLC v Guldi, 108 AD3d 506, 507; Bank of N.Y. v Silverberg, 86 AD3d 274, 279). The Supreme Court properly rejected this claim because Hayles waived it by failing to challenge the plaintiff's standing in her answer or in a pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989, 990; see also CPLR 3211[e]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761).
A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action [*2](see Wells Fargo Bank v Malave, 107 AD3d 880). As Hayles failed to demonstrate any potentially meritorious defense to the foreclosure action or a reasonable excuse for her default in opposing the plaintiff's motion for summary judgment, the Supreme Court properly denied that branch of her motion which was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1) (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d at 990).
Furthermore, the Supreme Court properly denied those branches of Hayles' motion which were, in effect, pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment of foreclosure and sale. In this regard, the record contains no evidence of fraud or misrepresentation, and an alleged lack of standing is not a jurisdictional defect (see U.S. Bank N.A. v Tate, 102 AD3d 859, 860; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810, 811).
Bold is mine.
One thought on “CPLR 3211(e) + alleged lack of standing is not a jurisdictional defect”
I take it that the 2015 citation is a typo and not the result of clairvoyance.
Also, the result in this case seems a little harsh. I can understand that a defendant can waive an entitlement to dismissal for lack of standing by failing to raise it as an affirmative defense. But I still think that a defendant would be entitled to show that the plaintiff was not the holder of a note in a opposition to a SJ motion or at trial.
I would understand if the Court said that the claim that plaintiff wasn’t the holder of the note was conclusory — or that there was not a reasonable excuse for the default. But how can you say that the fact that the plaintiff isn’t the note holder in a foreclosure action is “waived” as a meritorious defense?