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APPARENTLY THE MORTGAGOR WAS DECEASED AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED RENDERING THE FORECLOSURE ACTION A NULLITY; SUPREME COURT DID NOT HAVE JURISDICTION, SO AMENDING THE CAPTION TO ADD THE EXECUTOR DID NOT EFFECTUATE JURISDICTION OVER THE ESTATE; ECHO BAY PURCHASED THE PROPERTY FROM THE MORTGAGOR’S SUCCESSORS FOUR YEARS LATER; ECHO BAY HAD THE RIGHT TO INTERVENE, MOVE TO VACATE THE JUDGMENT OF FORECLOSURE AND SALE, AND MOVE TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, granting the motion to intervene and dismissing the foreclosure complaint, apparently determined the mortgagor was deceased at the time the foreclosure action was brought rendering the action a nullity. Therefore Supreme Court did not have jurisdiction to amend the caption to add the mortgagor’s executor. For years later, Echo Bay purchased the property from the mortgagor’s successors and properly moved to intervene, to vacate the judgment of foreclosure and sale and to dismiss the complaint:

“‘A party may not commence a legal action or proceeding against a dead person'” … , and an action to foreclose a mortgage is a legal nullity insofar as asserted against a deceased mortgagor … . “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” … . * * *

… [T]he fact that Echo Ray obtained its interest in the property after the action was commenced and the notice of pendency was filed does not bar intervention … , and that branch of the plaintiff’s prior motion which was for leave to amend the caption to substitute the executor of [mortgagor’s] estate as a defendant in this action did not effectuate jurisdiction over her estate … . * * *

… Supreme Court should have granted those branches of the motion of Echo Ray which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint, as the action was a legal nullity insofar as asserted against [the mortgagor], the sole borrower and property owner as alleged in the complaint … . The owner of the property is an indispensable party to a foreclosure action (see RPAPL 1311[1] …). “The absence of an indispensable party mandates dismissal of the action, and the plaintiff cannot maintain the action as against the other defendants” … . Federal Natl. Mtge. Assn. v Jackson, 2026 NY Slip Op 04927, Second Dept 8-12-26

Practice Point: If the mortgagor is deceased when the foreclosure action is commenced, the action is a nullity and the judgment of foreclosure and sale is void. A subsequent purchaser of the property can successfully move to intervene, vacate the judgment and dismiss the foreclosure complaint.

 

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