TOO LATE FOR RPAPL 1302-A

According to e courts, no notice of appeal was filed.

JPMorgan Chase Bank, NA v. Carducci, 2020 NY Slip Op 20072 - NY: Supreme Court, Westchester County, March 10, 2020:

"Initially, the bank made the necessary showing to properly obtain a judgment of foreclosure. It produced the unpaid note, endorsed in blank, as well as the assigned mortgage and evidence of the mortgagors' default (see Citibank, N.A. v Van Brunt Props., LLC, 95 AD3d 1158, 1159 [2d Dept 2012]). Although there was no answer putting plaintiff's standing in issue, plaintiff's submissions proved its standing. The documents submitted with the filed complaint established that plaintiff was assigned the mortgage, and was in physical possession of the note, endorsed in blank by the payee (see Wells Fargo Bank, NA v Thomas, 150 AD3d 1312, 1313 [2d Dept 2017]).

Defendants abandoned the previous motion to vacate the judgment, therefore, the issues raised there — an alleged lack of personal jurisdiction and failure to comply with conditions precedent regarding required notices — are deemed to have been abandoned.

Defendants now rely solely on the contention that plaintiff lacks standing. They cite in support newly-enacted RPAPL 1302-a, which provides that "any objection or defense based on the plaintiff's lack of standing in a foreclosure proceeding relating to a home loan. . . shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss." However, defendants read too much into the new statute when they argue that defendants who seeks to interpose the standing defense after defaulting in the action need not establish grounds to vacate their default.

In order to vacate a default judgment of foreclosure and sale, a defendant must establish both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a][1]; HSBC Bank, USA v Dammond, 59 AD3d 679, 680 [2d Dept 2009]). While RPAPL 1302-a abrogates the portion of HSBC v Dammond which held that "[h]aving failed to interpose an answer or file a timely pre-answer motion which asserted the defense of standing, the respondent waived such defense pursuant to CPLR 3211(e)" (59 AD3d at 680), the statute does not alter the remainder of the ruling of that case, that "since the respondent failed to demonstrate any other meritorious defense to the foreclosure action, and did not demonstrate a reasonable excuse for his failure to answer, it was error for the Supreme Court to grant those branches of the respondent's motion which were to vacate the judgment of foreclosure and dismiss the complaint (id. [emphasis added]).

Assuming that the defendants established the existence of a newly-available, valid standing defense, they must also establish excusable neglect. At oral argument, counsel for defendants conceded that they are unable to make such a showing. Moreover, nothing in defendants' moving papers makes such a claim. Accordingly, grounds to vacate the default judgment of foreclosure have not been presented.
Even if defendants are correct that RPAPL 1302-a authorizes the vacatur of a default judgment solely upon a demonstration of a viable standing defense, defendants' last minute argument challenging plaintiff's standing is not meritorious. Plaintiff was in possession of the note, endorsed in blank by the original lender, when it commenced this action. Defendants' citation to JPMorgan Chase Bank N.A. v Grennan (175 AD3d 1513 [2d Dept 2019]) is unavailing. In that matter, the Court found an issue of fact as to whether the note's endorsement in blank, which was situated on a separate page, was on an allonge that was firmly affixed to the note. The endorsement on the note at issue here is on the note's signature page.

This Court rejects defendants' argument that Washington Mutual's endorsement is invalid and has no legal effect, because of Washington Mutual's bankruptcy and takeover by the FDIC, which sold the bank's assets to plaintiff on September 25, 2008. The timing of the official assignment of the mortgage from the FDIC to plaintiff, which did not occur until November 3, 2016, does not invalidate the endorsement in blank of the note, which necessarily occurred while Washington Mutual was still in business. Defendants engage in mere speculation when they contend that the endorsement occurred improperly, at a time when Washington Mutual no longer had an interest in the note."