WAS THIS BORROWER ON A QUIXOTIC QUEST?
When the mortgagee-bank filed a foreclosure case with the Kings County Supreme Court, the mortgagor was served via the Secretary of State. And when that borrower failed to answer, or otherwise appear, in November 2016, the bank presented the court with an order of reference (so that the amount due could be calculated), which order was returned for correction. Inexplicably, it wasn’t until March of 2018 that a new order of reference was submitted to the court. Over a year later, in September 2019, the mortgagor moved to dismiss the case for lack of jurisdiction, or to deem the case abandoned, or to vacate its default and for leave to serve a late answer. And when that request was denied, an appeal followed.
Since the pleadings were served via the Secretary of State, the Appellate Division, Second Department, noted that there was a “presumption of proper service,” and that to warrant a hearing, the facts asserted in the affidavit of service had to have been rebutted by “specific, detailed facts.” Since the mortgagor’s papers were conclusory in nature, (and merely denied receipt), the AD2 thought that branch of the request was appropriately denied.
As for the purported “abandonment of the case,” the AD2 thought that it wasn’t necessary to secure the default judgment within a year, but that as long as the bank initiated the process to seek the entry of a default (such as, via the order of reference), that showed that there was no intent to abandon the litigation, and thus that second branch of the borrower’s application was also appropriately denied.
And because the mortgagor failed to competently show that it had not received the foreclosure paperwork, nor presented a reasonable excuse for the delay, the AD2 also affirmed the denial of that final branch of the motion.
As Miguel de Cervantes, an Early Modern Spanish writer and author of Don Quixote once noted, “Delay always breeds danger ….”
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DECISION