Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

US Bank N.A. v. Louis

Supreme Court of New York, Second Department

March 1, 2017

US Bank National Association, etc., respondent,
v.
Marie Jean Louis, etc., appellant, et al., defendants. Index No. 23531/09

          Petroff Amshen, LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Alexander Krul of counsel), for appellant.

          Hogan Lovells US, LLP, New York, NY (Suzanne Novak and Heather Gushue of counsel), for respondent.

          JOHN M. LEVENTHAL, J.P. SHERI S. ROMAN SANDRA L. SGROI FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the defendant Marie Jean Louis appeals from an order of the Supreme Court, Kings County (Graham, J.), dated August 18, 2015, which granted those branches of the plaintiff's motion which were for leave to enter a default judgment against her upon her failure to appear or answer the complaint, and for an order of reference, and denied her application for leave to serve a late answer.

         ORDERED that on the Court's own motion, the notice of appeal from so much of the order as denied the application of the defendant Marie Jean Louis for leave to serve a late answer is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is affirmed, with costs.

         The plaintiff commenced this action to foreclose a mortgage secured by real property owned by the defendant Marie Jean Louis, alleging that she had defaulted on her payment obligations. Louis failed to appear or answer the complaint. The plaintiff thereafter moved, inter alia, for a default judgment against Louis and for an order of reference. Louis opposed those branches of the motion, and sought leave to serve a late answer. The Supreme Court granted those branches of the plaintiff's motion and denied Louis's application.

         Contrary to Louis's contention, the affidavit of merit from a representative of the plaintiff's servicing agent, accompanied by a power of attorney demonstrating the authority of the agent to act on behalf of the plaintiff, in which the representative averred that she had acquired personal knowledge of the matters discussed in her affidavit by reviewing the loan servicer's business records, was competent evidence to establish the plaintiff's entitlement to a default judgment against Louis and an order of reference (see HSBC Bank USA v Angeles, 143 A.D.3d 671, 672-673; TCIF REO GCM, LLC v Walker, 139 A.D.3d 704, 706; U.S. Bank N.A. v Gulley, 137 A.D.3d 1008, 1009; US Bank N.A. v Smith, 132 A.D.3d 848, 849-850; Mortgage Elec. Registration Sys., Inc. v Smith, 111 A.D.3d 804, 805-806).

         To defeat a facially adequate CPLR 3215 motion, and also to obtain leave to serve a late answer, a defendant who admits to having defaulted in the action must show that she has a reasonable excuse and a potentially meritorious defense to the action (see Federal Natl. Mtg. Assn. v Zapata, 143 A.D.3d 857, 858; U.S. Bank N.A. v Wolnerman, 135 A.D.3d 850, 851; Fried v Jacob Holding, Inc., 110 A.D.3d 56, 60). Here, contrary to Louis's contention, her appearance and participation in settlement conferences more than two years after the action was commenced, the last of which occurred approximately one year before she opposed the plaintiff's motion and sought leave to serve a late answer, did not constitute a reasonable excuse for her delay in answering (see JPMorgan Chase Bank, N.A. v Comfort Boampong, 145 A.D.3d 981; HSBC Bank USA, N.A. v Grella, 145 A.D.3d 669; Federal Natl. Mtg. Assn. v Zapata, 143 A.D.3d at 858; U.S. Bank N.A. v Ahmed, 137 A.D.3d 1106, 1108; Mannino Dev., Inc. v Linares, 117 A.D.3d 995; HSBC Bank USA, N.A. v Lafazan, 115 A.D.3d 647, 648). Since Louis failed to demonstrate a reasonable excuse for her delay in answering, it is unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense (see JPMorgan Chase Bank, N.A. v Comfort Boampong, 145A.D.3d 981; Mannino Dev., Inc. v Linares, 117 A.D.3d at 996; HSBC Bank USA, N.A. v Lafazan, 115 A.D.3d at 648).

         Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for leave to enter a default judgment against Louis upon her failure to appear or answer the complaint, and for an order of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.