L. Singer, P.C., Melville, NY, for appellant.
Lord LLP, New York, NY (R. James DeRose III, Casey B. Howard,
and Samantha Ingram of counsel), for respondent.
C. BALKIN, J.P, LEONARD B. AUSTIN, SANDRA L. SGROI, VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Prem Nath
appeals from an order of the Supreme Court, Rockland County
(Gerald E. Loehr, J.), dated August 25, 2015. The order
denied that defendant's motion to vacate a judgment of
foreclosure and sale of the same court (Alfred J. Weiner, J.)
entered March 2, 2011, and to dismiss the action for lack of
that the order is affirmed, with costs.
September 4, 1998, the defendant Prem Nath (hereinafter the
defendant) executed a promissory note in the amount of $500,
000 in favor of the Long Beach Mortgage Company (hereinafter
Long Beach). As security for the note, the defendant executed
a mortgage in favor of Long Beach encumbering real property
located in Blauvelt. The defendant defaulted on the loan by
failing to make the monthly installment payment due January
1, 2001. Long Beach assigned the mortgage to the plaintiff,
Chase Manhattan Bank. In June 2001, the plaintiff commenced
this action to foreclose the mortgage against the defendant,
among others. The defendant filed an answer in which he
generally denied all of the allegations in the complaint and
asserted three affirmative defenses relating, inter alia, to
his attempt to make payment of the mortgage note and
reinstate the loan.
protracted litigation, including a chapter 7 bankruptcy
proceeding (see 1978 Bankruptcy Code [11 USC] §
701 et seq.), on March 18, 2010, the defendant,
represented by counsel, executed documents entitled
"Settlement Agreement and Releases" (hereinafter
the settlement agreement) and "Loan Modification
Agreement" (hereinafter the loan modification) with
"LaSalle Bank National Association, as Indenture Trustee
for CSFB Trust 2002-NP14" (hereinafter LaSalle Bank), by
Select Portfolio Servicing (hereinafter SPS), its servicing
agent. The settlement agreement stated, inter alia, that the
plaintiff had assigned the note and mortgage to LaSalle Bank,
and that LaSalle Bank, by SPS, and the defendant wished to
settle the foreclosure action. Further, the settlement
agreement provided that in the event that the defendant did
not make the first three payments in accordance with the loan
modification, he agreed and consented to, inter alia, waive
any and all defenses to the foreclosure action, the
withdrawal and/or dismissal of his answer, and the entry of a
judgment of foreclosure and sale. It is undisputed that the
defendant failed to make any payment pursuant to the loan
2010, the defendant moved to rescind the loan modification on
the grounds of mutual mistake and anticipatory repudiation by
the plaintiff, and the plaintiff cross-moved, inter alia, for
leave to enter a judgment of foreclosure and sale. In an
order entered December 13, 2010, the Supreme Court (Alfred J.
Weiner, J.) denied the defendant's motion to rescind the
loan modification and granted the plaintiff's cross
motion. The court issued a judgment of foreclosure and sale
in favor of the plaintiff entered March 2, 2011.
thereafter, the defendant moved to "renew [the]
plaintiff's cross motion" and to vacate the judgment
of foreclosure and sale (hereinafter the first motion to
vacate), arguing, in effect, that the plaintiff lacked
standing. In an order entered July 28, 2011, the Supreme
Court (Alfred J. Weiner, J.) denied the first motion to
vacate. The court found that the defendant did not offer
reasonable justification for failing to offer "the
additional facts" in opposition to the cross motion. The
court stated that the additional facts were available at the
time of the cross motion and were discoverable with
appropriate diligence. The defendant took an appeal from that
order, but did not perfect the appeal.
the defendant filed a chapter 13 bankruptcy petition
(see 1978 Bankruptcy Code [11 USC] ch 13), which was
ultimately dismissed. A foreclosure sale was scheduled for
December 17, 2014. On or about December 9, 2014, the
defendant again moved, inter alia, to vacate the judgment of
foreclosure and sale (hereinafter the second motion to
vacate). Shortly thereafter, before the plaintiff filed
opposition papers, the defendant filed a second chapter 7
bankruptcy petition, which led to the cancellation of the
scheduled foreclosure sale. The automatic stay in the chapter
7 bankruptcy proceeding was eventually lifted. In the order
appealed from dated August 25, 2015, the Supreme Court
(Gerald E. Loehr, J.) denied the second motion to vacate. The
court noted that the second motion to vacate was based on
essentially the same ground as the first motion to vacate,
that is, the plaintiff's lack of standing. The court
noted that the second motion to vacate was denied
"essentially for the same reasons" stated in the
decisions and orders of Justice Weiner and the Bankruptcy
Court. The defendant appeals, and we affirm.
agree with the Supreme Court's denial of that branch of
the second motion to vacate which was to vacate the judgment
of foreclosure and sale, since that branch of the motion was
premised either on the same grounds asserted in the
defendant's first motion to vacate, which was denied by
the court in an order from which the defendant did not
perfect his appeal, or on grounds that were apparent at the
time that the defendant made the first motion, but had not
been asserted in the first motion (see EMC Mtge. Corp. v
Asturizaga, 150 A.D.3d 824, 825; HSBC Bank USA, N.A.
v Legros, 122 A.D.3d 799, 800; Eastern Sav. Bank,
FSB v Brown, 112 A.D.3d 668, 670; Discover Bank v
Qader, 105 A.D.3d 892).
the defendant's contention that the plaintiff
fraudulently obtained the judgment of foreclosure and sale by
making false allegations in the complaint about its standing
and capacity to commence the action and by submitting
fraudulent documents to the court amount to an allegation of
intrinsic fraud (see PennyMac Corp. v Weiss, 152
A.D.3d 712, 714; US Bank N.A. v Galloway, 150 A.D.3d
1174, 1175; U.S. Bank, N.A. v Peters, 127 A.D.3d
742, 742-743). The defendant failed to provide any evidence
of fraud, mistake, inadvertence, surprise, or excusable
neglect that would constitute a basis for vacatur of the
judgment of foreclosure and sale in the interests of
substantial justice (see Wells Fargo Bank Minn., N.A. v
Coletta, 153 A.D.3d 757, 758).
addition, lack of standing and lack of capacity are not
defects that deprive a court of subject matter jurisdiction
for purposes of CPLR 5015(a)(4) (see Behringer v 19407
Linden, LLC, 139 A.D.3d 777, 778; Mortgage Elec.
Registration Sys., Inc. v Gifford, 133 A.D.3d 429,
430-431; Wells Fargo Bank, N.A. v Rooney, 132 A.D.3d
980, 983; Wells Fargo Bank Minn., N.A. v
Mastropaolo, 42 A.D.3d 239). In any event, the defendant
waived these defenses by failing to assert them in his answer
or a pre-answer motion to dismiss (see Bank of Am., N.A.
v Cudjoe, 157 A.D.3d 653; Wells Fargo Bank, N.A. v
Erobobo, 127 A.D.3d 1176, 1177; Security Pac. Natl.
Bank v Evans, 31 A.D.3d 278, 280).
the defendant failed to demonstrate his entitlement to
vacatur pursuant to CPLR 5015(a)(2) based on newly discovered
evidence. Even if the evidence proffered was new within the
meaning of the statute, the defendant failed to establish
that the newly discovered evidence probably would have
produced a different result (see Bank of N.Y. v
Tobing,155 A.D.3d 596, 596; US Bank N.A. v
Galloway, 150 ...