The First Department determined Supreme Court should have granted defendant’s motion to vacate the default in this foreclosure proceeding. Defendant’s counsel had neglected to file opposing papers when plaintiff moved for summary judgment and moved to vacate the default a month later. The failure to answer the motion was deemed excusable. The First Department found merit in defendant’s allegations of flaws in the notice provided by the bank, flaws in the bank’s proof of standing, and flaws in the bank’s proof the note was lost:
The borrower’s prior counsel acknowledged that he failed to submit opposition to the summary judgment motion after stipulating to adjourn that motion. However, counsel moved to vacate the default less than one month after Supreme Court’s decision was entered. Absent a pattern of dilatory behavior, the default was an excusable, one-time oversight, resulting in no prejudice … . …
The borrower raised a colorable notice defense regarding plaintiff’s service of the mortgage’s 30-day default notice and the requisite 90-day notice under RPAPL 1304 … . … [T]he affidavit of plaintiff’s servicing agent failed to indicate that she had familiarity with standard office mailing procedures … . * * *
Plaintiff seeks to foreclose the principal sum of $327,828.34, but there are gaps in its proof. * * *
There is also a question as to the sufficiency of the content of the lost note affidavit submitted on summary judgment. The affidavit * * * does not state when the search was made or by whom, and does not indicate approximately when the note was lost. Therefore, the borrower has demonstrated a potentially meritorious standing defense … . US Bank N.A. v Richards, 2017 NY Slip Op 08299, First Dept 11-28-17
FORECLOSURE (MOTION TO VACATE DEFAULT IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED, THE REASON FOR THE DEFAULT WAS DEEMED EXCUSABLE, THERE WAS NO PREJUDICE, THERE WERE MERITORIOUS ISSUES RE NOTICE AND STANDING (FIRST DEPT))/CIVIL PROCEDURE (VACATE DEFAULT, FORECLOSURE, MOTION TO VACATE DEFAULT IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED, THE REASON FOR THE DEFAULT WAS DEEMED EXCUSABLE, THERE WAS NO PREJUDICE, THERE WERE MERITORIOUS ISSUES RE NOTICE AND STANDING (FIRST DEPT))/DEFAULT (FORECLOSURE, MOTION TO VACATE DEFAULT IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED, THE REASON FOR THE DEFAULT WAS DEEMED EXCUSABLE, THERE WAS NO PREJUDICE, THERE WERE MERITORIOUS ISSUES RE NOTICE AND STANDING (FIRST DEPT))