You are here: / / THE BANK DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TAKE PROCEEDINGS...
, , ,

THE BANK DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TAKE PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN A YEAR AND DID NOT SUBMIT AN ADEQUATE LOST NOTE AFFIDAVIT; THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED; THE ACTION IS DEEMED ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not submit sufficient evidence to support a late motion for default judgment against the borrower. The bank did not offer a reasonable excuse for failure to take proceedings for a default judgment within a year, and did not submit a sufficient lost note affidavit. The Second Department deemed the action abandoned pursuant to CPLR 3215:

… [T]he plaintiff failed to proffer a reasonable excuse for its failure to take proceedings for the entry of a judgment within one year after the action was released from the foreclosure settlement part … .

Further, a plaintiff moving for leave to enter default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant’s failure to answer or appear … . Pursuant to UCC 3-804, “[t]he owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in his [or her] own name and recover from any party liable thereon upon due proof of his [or her] ownership, the facts which prevent his [or her] production of the instrument and its terms.” Here, the plaintiff failed to set forth the facts that prevented the production of the original note … . The lost note affidavit submitted by the plaintiff in support of its motion, inter alia, for leave to enter a default judgment did not identify who conducted the search for the lost note or explain when or how the note was lost … . LaSalle Bank N.A. v Carlton, 2022 NY Slip Op 02785, Second Dept 4-27-22

Practice Point: If the bank does not present an adequate excuse for failing to take proceedings for a default judgment in a foreclosure action within one year, the action will be deemed abandoned pursuant to CPLR 3215.

 

You might also like
ALTHOUGH INSURANCE LAW 3420(d)(2) REQUIRING TIMELY NOTICE OF THE DISCLAIMER OF INSURANCE COVERAGE DOES NOT APPLY TO THIS BREACH OF CONTRACT (AS OPPOSED TO A PERSONAL INJURY) ACTION, THE DISCLAIMERS WERE UNTIMELY UNDER COMMON LAW WAIVER AND ESTOPPEL PRINCIPLES (SECOND DEPT).
Malpractice Action for Depression-Treatment Prior to Suicide Is Actionable
THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIES RETROACTIVELY TO THE 2005 DISONTINUANCE OF THE FORECLOSURE ACTION RENDERING THE ACTION COMMENCED IN 2015 TIME-BARRED (SECOND DEPT).
HERE A DISPUTE AMONG BROTHERS ABOUT OWNERSHIP OF REAL PROPERTY WAS RESOLVED BY AN OPEN COURT STIPULATION (CONTRACT) WHICH CANNOT BE INVALIDATED ABSENT FRAUD, COLLUSION, MISTAKE OR ACCIDENT; THEREFORE SUPREME COURT SHOULD HAVE HELD A HEARING BEFORE APPROVING THE SUBSEQUENT APPORTIONMENT OF THE PROPERTY BY A RECEIVER WHICH WAS INCONSISTENT WITH THE STIPULATION (SECOND DEPT).
INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT.
PLAINTIFF DID NOT HAVE STANDING TO CONTEST PERMITS GRANTING THE CONVERSION OF DEFENDANT’S PROPERTY FROM MANUFACTURING TO RETAIL; PROXIMITY TO DEFENDANT’S PROPERTY WAS NOT ENOUGH (SECOND DEPT).
THE NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD (CCRB) IS NOT ENTITLED TO UNSEAL THE RECORD OF THE CRIMINAL PROSECUTION AND TRIAL OF AN OFF-DUTY POLICE OFFICER WHO SHOT A MAN IN A ROAD RAGE INCIDENT (SECOND DEPT).
THE BANK’S COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1303 AND 1304 WAS NOT DEMONSTRATED IN THIS FORECLOSURE ACTION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE BANK (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN THIS LABOR LAW 240(1) CASE, PLAINTIFF ALLEGED THE LADDER WAS UNSECURED AND... QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL...