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Wells Fargo Bank v. Malave

Supreme Court of New York, Second Department

June 19, 2013

Wells Fargo Bank, etc., respondent,
v.
Josue Malave, et al., defendants, Janet Morales, et al., appellants. Index No. 6567/06

Bruce Richardson, New York, N.Y. (Bruce Richardson of counsel), for appellants.

Reed Smith, New York, N.Y. (Andrew B. Messite and Joseph B. Teig of counsel), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, PLUMMER E. LOTT, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Janet Morales and Luis Morales appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated April 8, 2011, which denied their motion to vacate a judgment of foreclosure and sale of the same court dated January 30, 2007, entered upon their default in appearing or answering the complaint, to set aside the foreclosure sale of the subject property, and to dismiss the complaint for lack of standing.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied that branch of the appellants' motion which was to vacate the judgment of foreclosure and sale dated January 30, 2007, which was entered upon their default in appearing or answering the complaint. A defendant seeking to vacate a default in appearing or answering must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1]; U.S. Bank N.A. v Stewart, 97 A.D.3d 740; Deutsche Bank Natl. Trust Co. v Luden, 91 A.D.3d 701, 701; Fremont Inv. & Loan v Bertram, 90 A.D.3d 988; Citimortgage, Inc. v Brown, 83 A.D.3d 644, 645). Here, the appellants failed to demonstrate a reasonable excuse for their default, and, therefore, it is unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v Stewart, 97 A.D.3d 740; Tribeca Lending Corp. v Correa, 92 A.D.3d 770, 771; Wells Fargo Bank, N.A. v Cervini, 84 A.D.3d 789). As a result, those branches of the appellants' motion which were to set aside the foreclosure sale of the subject property and to dismiss the action for lack of standing were also properly denied.

SKELOS, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.


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